United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Long Beach, CA, Employer
__________________________________________

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

Docket No. 15-1053
Issued: September 11, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 6, 2015 appellant filed a timely appeal from an October 9, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated September 16, 2013 and 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 her claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was not timely filed and did not demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 29, 2003 appellant, then a 35-year-old nursing assistant, filed an occupational
disease claim alleging depression, stress, and headaches as a result of harassment by her
supervisors and assaults and racial slurs by patients. OWCP accepted her claim for acute stress
disorder, anxiety, post-traumatic stress disorder (PTSD), panic attacks, double depression, and an
acceleration of bulimia.2 It found that appellant had established as compensable work factors
that patients verbally and/or physically abused or threatened her on various occasions from
August 2001 to May 2003. OWCP paid her compensation for total disability from July 15 to 29,
2003 and for intermittent time lost from February 21, 2004 through April 17, 2005.
On June 21, 2007 appellant accepted a position working as a program support assistant.
The position did not require contact with patients. By letter dated March 30, 2009, the
employing establishment advised that it had removed appellant for cause effective
February 7, 2009. Appellant filed claims for compensation for time lost from work beginning
January 26, 2009.
By decision dated February 25, 2010, OWCP found that appellant had not established a
recurrence of disability beginning January 26, 2009. It noted that the employing establishment
removed her for cause on February 7, 2009 for reasons unrelated to her work injury.
On February 23, 2011 appellant requested reconsideration. In a decision dated May 26,
2011, OWCP denied modification of its February 25, 2010 decision. It considered appellant’s
allegation that the employing establishment terminated her because she was a possible witness in
a Merit Systems Protection Board (MSPB) case and because of absences from work as a result of
her work injury. OWCP also reviewed November 16 and December 23, 2009 reports from
Dr. David Van Zak, an attending licensed clinical psychologist, but found that the reports were
insufficient to show that she was totally disabled as the result of her accepted employment injury.
On May 25, 2012 appellant again requested reconsideration. By decision dated
September 16, 2013, OWCP denied modification of its May 26, 2011 decision. It noted that the
employing establishment removed appellant for excessive absences after granting her 1,344
hours of leave without pay from October 1, 2007 to December 2, 2008. OWCP also indicated
that she had not claimed any compensation for disability during that period. It reviewed
additional medical reports from Dr. Van Zak and evidence regarding appellant’s claim for
benefits from the Social Security Administration (SSA). OWCP further considered her
allegation that the employing establishment terminated her because she missed work in 2007 and
2008 due to her work injury and as she was a potential witness before MSPB and participated in
Equal Employment Opportunity (EEO) activity.
2

On January 30, 2004 OWCP accepted appellant’s claim for an acute stress disorder. It found that she had
established disability only for the period July 15 through 29, 2003. By decision dated January 3, 2005, an OWCP
hearing representative vacated the January 30, 2004 decision and remanded the case for further development. On
March 9, 2005 OWCP expanded acceptance of appellant’s claim to include anxiety, PTSD, double depression, and
an acceleration of bulimia. In a decision dated October 27, 2005, it found that she had not established a recurrence
of disability. In decisions dated October 27, 2005, May 18, June 7 and July 31, 2006, and January 5 and April 12,
2007, OWCP denied appellant’s claims for compensation for intermittent periods of disability from work.

2

In a January 22, 2013 work restriction evaluation, Dr. Van Zak advised that appellant was
disabled from employment.
On September 17, 2014 appellant requested reconsideration. She related that she did not
file claims for disability compensation between October 1, 2007 and December 2, 2008 because
OWCP had denied her previous compensation claims. Appellant maintained that she had
submitted evidence showing that the employing establishment did not adhere to her work
restrictions. She questioned why OWCP accepted her employing establishment account of
events. Appellant contended that the employing establishment assigned her to departments with
patients even though there were other areas she could have worked. She argued that she was not
provided with the appropriate training. Appellant again attributed her termination from the
employing establishment to absences due to her work injury and the possibility that she would be
a witness in an MSPB case. She related that Dr. Van Zak’s disability certificates were for the
employing establishment rather than OWCP and thus did not require rationale. Appellant
summarized the list of evidence that she submitted with her request for reconsideration. She
advised that she did not request an afternoon shift at her work assignment, but instead requested
a change to another department.
Appellant resubmitted reports from Dr. Van Zak dated July 19, 2008 and
January 30, 2013. She also resubmitted April 2008 e-mails between herself and the employing
establishment regarding her request for additional training, matters involving timekeeping, and
her request for a change in duty hours to an afternoon shift.3 Appellant further resubmitted a
March 20, 2009 letter regarding an EEO complaint against the employing establishment for
harassment and discrimination.
In a statement dated March 25, 2005, appellant summarized incidents of alleged
harassment. On July 26, 2007 she described the basis of her EEO claim. Appellant contended
that the employing establishment harassed and discriminated against her, failed to train her, did
not provide accommodation, and found her absent without leave even though she submitted
documentation.
In a November 30, 2007 letter to the employing establishment, appellant described the
issues in her EEO claim and requested that it review the issues “at the formal stage.” She
asserted that stress at work affected her emotional condition.
On September 23, 2014 appellant resubmitted numerous 2007 and 2008 reports from
Dr. Van Zak. In reports dated November 2007, Dr. Van Zak recommended that she work a
“swing shift” as her depression reduced her energy in the morning. On March 17, 2008 he
recommended that appellant work the evening shift. Dr. Van Zak noted that there were periods
when she could work only a few days a week.
By decision dated October 9, 2014, OWCP denied appellant’s request for reconsideration
as untimely and insufficient to establish clear evidence of error. It found that her September 17,
2014 request for reconsideration raised issues previously considered.
3

Appellant’s supervisor advised that her location did not have an afternoon shift, but that she could request a tour
of duty that began later each day.

3

On appeal appellant maintains that she timely requested reconsideration as demonstrated
by tracking information submitted with her appeal. She questions why OWCP believed the
employing establishment. Appellant maintains that there were other places in the employing
establishment that she could have worked, that she was not properly trained, and that she
experienced harassment. She contends that she was terminated in retaliation for having a work
injury. Appellant asserts that Dr. Van Zak provided rationale and opinions on causation. She
was listed as a witness in an MSPB case.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a) of FECA.4 One such limitation, 20 C.F.R. § 10.607, provides
that an application for reconsideration must be received within one year of the date of OWCP
decision for which review is sought.5 OWCP will consider an untimely application only if the
application demonstrates clear evidence of error on the part of OWCP in its most recent merit
decision. The application must establish, on its face, that such decision was erroneous.6
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 of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized
medical report which, if submitted prior to the denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.7 To establish clear evidence of error, a
claimant must submit evidence relevant to the issue which was decided by OWCP. The evidence
must be positive, precise, and explicit and must manifest on its face that it committed an error.8
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. OWCP procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original OWCP decision.9 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.10
4

5 U.S.C. § 8101 et seq.

5

Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for
merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011).
6

20 C.F.R. § 10.607(b).

7

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.5(a) (October 2011).

8

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
9

Federal (FECA) Procedure Manual, supra note 5.

10

Robert F. Stone, supra note 8.

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As OWCP received appellant’s September 12, 2014 request for reconsideration on
September 17, 2014, more than one year after the last merit decision of record dated
September 16, 2013, it was untimely. Consequently, appellant must demonstrate clear evidence
of error by OWCP in denying her claim for compensation.11
On appeal appellant argues that OWCP timely received her request for reconsideration on
September 16, 2014 as evidenced by the tracking receipt. She submitted evidence on appeal in
support of her contention. The Board, however, cannot review this evidence for the first time on
appeal.12 Further, according to OWCP procedures, the date received is determined by the
document received date in the Integrated Federal Employees’ Compensation System.13
The Board finds that appellant has not established clear evidence of error. The
underlying issue in this case is whether she sustained a recurrence of disability beginning
January 26, 2009 as a result of her accepted employment injury. OWCP accepted appellant’s
claim for acute stress disorder, anxiety, PTSD, panic attacks, depression, and acceleration of
bulimia as a result of being physically and verbally abused by patients on various occasions from
2001 to 2003.
In support of her request for reconsideration, appellant asserted that the employing
establishment did not comply with her work restrictions. She did not, however, submit any
evidence supporting her allegation and thus has not established error in OWCP’s finding that she
did not establish a recurrence of disability.
Appellant further contended that the employing establishment wrongly terminated her, in
part, for being a potential witness in an MSBP case. She also contends that her employing
establishment harassed and retaliated against her, failed to properly train her, and did not provide
her with an appropriate work schedule. Appellant resubmitted e-mails she wrote to the
employing establishment regarding her training request, timekeeping matters, and a request for a
change in duty hours. She also submitted evidence regarding an EEO complaint alleging
harassment and discrimination. As discussed, however, the issue is whether appellant sustained
a recurrence of disability due to her accepted employment injury. Her contentions relate to new
work factors and thus are not relevant to the issue at hand.14
Appellant additionally contended that the employing establishment terminated her
employment due to absences as a result of her work injury. She submitted 2007, 2008 and 2013
reports from Dr. Van Zak in support of her contention, most of which had been previously
considered by OWCP. Appellant asserted that his reports contained some causal relationship. In
Dr. Van Zak’s resubmitted reports, he did not explain how the evidence manifested on its face
that OWCP committed an error in finding that appellant did not establish a recurrence of
11

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

12

Id. at § 501.2(c)(1).

13

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.4(b) (October 2011).

14

See Howard Y. Miyashiro, 51 ECAB 253 (1999) (in order to establish clear evidence of error, a claimant must
submit evidence relevant to the issue which was decided by OWCP).

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disability. Consequently, the resubmission of his reports is insufficient to raise a substantial
question as to the correctness of OWCP’s decision.15 Appellant also submitted reports dated
November 2007 and March 2008 from Dr. Van Zak advising that she should change duty shifts
and a January 22, 2013 form report indicating that she was disabled. Again, such reports are not
positive, precise, and explicit evidence of error by OWCP.
The Board notes that clear evidence of error is intended to represent a difficult standard.
The submission of a detailed and 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.16
On appeal appellant asserts that she was not properly trained and that the employing
establishment could have transferred her to another location. She also contends that her
employing establishment harassed and terminated her in retaliation for her work injury and for
being a witness before MSPB. As discussed, however, the relevant issue is whether appellant
experienced a recurrence of disability as a result of her accepted employment injury. Her
assertions regarding harassment, training, a transfer, and being a potential MSBP witness are not
relevant to the issue of whether she sustained an employment-related recurrence of disability as
they relate to intervening events rather than a spontaneous change in her condition.17 Appellant
also has not shown that she was terminated due to absences resulting from her accepted
condition.
Appellant additionally alleges that Dr. Van Zak provided rationale for his opinion. She
did not, however, identify any specific error by OWCP in evaluating the medical evidence. It is
not enough to merely allege that the evidence could be construed to produce a different
conclusion. Appellant must submit evidence or raise an argument that manifests on its face that
OWCP committed an error in finding that she did not establish a recurrence of disability.18
In order to establish clear evidence of error, the evidence submitted must raise a
substantial question as to the correctness of OWCP’s decision.19 The evidence submitted by
appellant on reconsideration fails to meet this standard.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error.

15

See C.S., Docket No. 15-484 (issued April 20, 2015); J.J., Docket No. 13-1363 (issued November 6, 2013).

16

See J.F., Docket No. 14-1938 (issued February 6, 2015); D.G., 59 ECAB 455 (2008).

17

A recurrence of disability is a work stoppage caused by “a spontaneous change in a medical condition which
has resulted from a previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. 20 C.F.R. § 10.5(x).
18

See Robert G. Burns, 57 ECAB 657 (2006).

19

See Veletta C. Coleman, 48 ECAB 367 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the October 9, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 11, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.N., Appellant
and
U.S. POSTAL SERVICE, PROCESSING
& DISTRIBUTION CENTER, Bellmawr, NJ,
Employer
__________________________________________

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

Docket No. 11-538
Issued: September 29, 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 December 28, 2010 appellant filed a timely appeal from July 1 and November 9, 2010
merit decisions of the Office of Workers’ Compensation Programs (OWCP) terminating her
medical 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 this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s medical benefits effective
June 30, 2010 on the grounds that she had no need for further medical treatment due to her
accepted employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 11, 2007 appellant, then a 46-year-old mail processor, filed a claim alleging
that she sustained an injury to her right shoulder and arm on August 29, 2007 in the performance
of duty. She stopped work on August 30, 2007. OWCP accepted the claim for a sprain of the
right shoulder and upper arm.2 It paid compensation from October 3, 2007 to April 10, 2008.
In a progress report dated January 4, 2008, Dr. Oluseyi Senu-oke, Board-certified in
family medicine, discussed appellant’s complaints of continued numbness in her fingers and
cracking of the right shoulder with movement. He diagnosed right shoulder cuff tendinitis and
impingement. On March 25, 2008 Dr. William A. Newcomb, a Board-certified orthopedic
surgeon, diagnosed impingement and scapular dykinesia of the right shoulder. In a duty status
report dated March 13, 2009, Dr. Senu-oke diagnosed right shoulder tendinitis and found that
appellant could not reach over the shoulder for more than two hours per day.
In an April 11, 2008 decision, OWCP suspended appellant’s compensation under 5
U.S.C. § 8123(d) for refusing to cooperate with a medical examination. By decision dated
September 19, 2008, a hearing representative affirmed the April 11, 2008 decision.
On January 7, 2010 OWCP referred appellant to Dr. Noubar Didizian, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated February 3, 2010,
Dr. Didizian discussed her history of a right arm sprain due to an August 29, 2007 employment
injury. He noted that appellant worked limited duty beginning March 2006 following surgery for
carpal tunnel syndrome. Dr. Didizian related that she currently worked in the position she was in
at the time of her August 2007 employment injury. On examination he found excellent mobility
of the shoulder with no pain, instability or crepitation at the acromioclavicular joint and that all
tests were “negative for any intrinsic shoulder pathology” or peripheral nerve involvement.
Dr. Didizian determined that appellant had no loss of function of the pectoralist and latissimus
dorsi. He noted that she had not received medical treatment for her right shoulder or arm since
2008. Dr. Didizian discussed appellant’s complaints of aching and stiffness in the right shoulder.
He interpreted an August 30, 2008 magnetic resonance imaging (MRI) scan study of the right
shoulder as showing “increased signal in the level of the supraspinatus at the musculotendinous
junction with no evidence of any acute tear or full-thickness tear.” Dr. Didizian diagnosed
resolved right shoulder supraspinatus tendinitis with “minimal subjective complaints” and
asserted that the MRI scan study supported his diagnoses. He stated, “It is my medical opinion
at this point that objectively [appellant] ha[s] returned to her preinjury level.” Dr. Didizian
opined that she might again develop symptoms given that her job caused her original injury. He
recommended that appellant continue isometric exercises to retain range of motion. In an
accompanying work restriction evaluation, Dr. Didizian determined that she could return to her
usual employment without restrictions.
On March 17, 2010 OWCP advised appellant that it proposed to terminate her medical
benefits based on Dr. Didizian’s finding that she had no residuals of her accepted employment
injury.
2

OWCP had previously accepted that appellant sustained bilateral carpal tunnel syndrome under another file
number xxxxxx674.

2

On March 31, 2010 appellant contended that OWCP should have accepted her claim for
right shoulder mild tendinosis of the supraspinatus tendon.3 She noted that Dr. Didizian found
that she continued to experience minimal subjective symptoms of the supraspinatus tendinitis
due to her employment. Appellant asserted that he found that she might reinjure herself if she
continued to work in her preinjury position. She argued that Dr. Didizian did not find that she
had no residuals of her work-related condition.
On June 27, 2010 appellant related that she “tried to report to regular duty in April 2010”
but that the employing establishment refused to allow her to work full duty due to her carpal
tunnel syndrome, accepted by OWCP under another file number. She requested a statement
from OWCP addressing whether she could work in a full-duty capacity.
By decision dated July 1, 2010, OWCP terminated appellant’s medical benefits effective
June 30, 2010, on the grounds that Dr. Didizian’s opinion established that she had no further
need for medical treatment due to her accepted work injury.
On July 27, 2010 appellant requested a review of the written record. She related that she
continued to require medical treatment for her right shoulder and referred to the MRI scan
studies.4 Appellant submitted medical evidence from 2007. In a report dated July 14, 2010,
Dr. Newcomb noted that she was performing her usual employment. He reviewed Dr. Didizian’s
report and found that his examination and the conclusions reached were “objective.”
Dr. Newcomb discussed appellant’s complaints of some continued right shoulder symptoms and
noted that she wanted another MRI scan study to assist her in her dispute with her employer. He
referred her for an MRI scan study.
By decision dated November 9, 2010, an OWCP hearing representative affirmed the
July 1, 2010 decision. She found that the medical evidence established that appellant had no
residuals of her accepted right shoulder strain.
On appeal, appellant argued that the hearing representative did not consider the July 20,
2010 MRI scan study. She also maintained that Dr. Newcomb provided medical evidence in
2008 and 2009 supporting her claim.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
3

Appellant also maintained that her benefits should be reinstated as she cooperated with the second opinion
examination. By letter dated June 25, 2010, OWCP advised her that it had reinstated her benefits retroactive to
October 19, 2009.
4

An MRI scan study of the right shoulder obtained August 30, 2007 showed mild supraspinatus tendinitis.
Electodiagnostic studies dated September 14, 2007 were normal. Appellant referred to a July 20, 2010 MRI scan
study but it is not in the case record.
5

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

3

OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.6 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.8
ANALYSIS
OWCP accepted that appellant sustained sprains of the right shoulder and upper arm due
to an August 29, 2007 employment injury. Appellant received compensation for total disability
until April 11, 2008, when OWCP suspended her compensation for failure to attend a scheduled
medical examination. She returned to her date-of-injury employment duties.
The Board finds that OWCP met its burden of proof to terminate appellant’s
authorization for medical benefits through the opinion of Dr. Didizian, who provided a second
opinion examination and determined that she had no active condition due to her accepted
employment injury. In a report dated February 3, 2010, Dr. Didizian provided findings on
examination of good mobility of the right shoulder without pain, instability or crepitation. He
further found no “trigger points over the coracoids, biceps or the greater tuberosity” and “full
function of the pectoralist and latissimus dorsi.” Dr. Didizian opined that appellant had no
peripheral nerve involvement or shoulder pathology. He diagnosed resolved right shoulder
supraspinatus tendinitis with mild subjective complaints. Dr. Didizian asserted that appellant
had returned to preinjury condition and that she could perform her usual employment. He
provided a through review of the factual and medical background and accurately summarized the
relevant medical evidence. Moreover, Dr. Didizian provided detailed findings on examination
and reached conclusions regarding appellant’s condition which comported with his findings.9
On July 14, 2010 Dr. Newcomb reviewed Dr. Didizian’s report and found that it was
objective in its findings and conclusions. He noted that appellant reported some continued
symptoms and wanted an MRI scan study. As Dr. Newcomb concurred with Dr. Didizian’s
findings, his opinion is insufficient to show that she has residuals of her accepted employment
injury. The Board thus finds that the weight of the evidence establishes that appellant had no
further residual condition due to her accepted work injury effective June 30, 2010, the date
OWCP terminated her authorization for medical benefits.

6

Gewin C. Hawkins, 52 ECAB 242 (2001).

7

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

8

Id.

9

See Pamela K. Guesford, 53 ECAB 726 (2002).

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On appeal, appellant contends that Dr. Newcomb’s reports from 2008 and 2009 support
her claim. In his most recent report dated July 14, 2010, however, Dr. Newcomb agreed with
Dr. Didizian’s conclusions.10
Appellant argues that the hearing representative failed to consider the July 20, 2010 MRI
scan study. The record, however, does not contain a July 20, 2010 MRI scan study. 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 terminated appellant’s medical benefits effective
June 30, 2010 on the grounds that she had no need for further medical treatment due to her
accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 9 and July 1, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 29, 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

10

In a report dated March 5, 2008, Dr. Newcomb suggested desk work for appellant and no right arm reaching.
On April 29, 2008 he injected her subacromial bursa to manage shoulder pain.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
U.S. POSTAL SERVICE, DOMINIC V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearny, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1926
Issued: May 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 19, 2012 appellant, through counsel, filed a timely appeal from an
April 10, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) that
denied her claim and an April 25, 2012 decision that denied merit review. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established a recurrence of disability on July 18,
2011; and (2) whether OWCP properly refused to reopen appellant’s claim for further review of
the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

On appeal appellant’s attorney asserts that the medical evidence established that appellant
sustained a recurrence of disability on July 18, 2011 and a second recurrence on August 8, 2011.2
FACTUAL HISTORY
On April 27, 2011 appellant, then a 39-year-old clerk, filed a traumatic injury claim
alleging that she sustained a right knee injury that day while clearing a jam. She stopped work
that day. OWCP accepted that she sustained a right knee sprain, and she was referred to a nurse
for medical management. Appellant received continuation of pay and wage-loss compensation
for disability.
In reports dated July 14, 2011, Dr. J. Lee Berger, an attending Board-certified orthopedic
surgeon, stated that appellant had recently had a magnetic resonance imaging (MRI) scan study
of the right knee that showed postoperative changes and Grade 4 chondromalacia, which had
been seen previously when she had arthroscopic surgery on June 14, 2010. He indicated that the
MRI scan study did not show an obvious new tear. On examination appellant had normal shape
and contour of the right knee with no instability to stress testing and some tenderness over the
lateral compartment. He diagnosed residual pain due to the June 14, 2010 surgery and advised
that appellant could return to work on July 18, 2011 without restrictions.
On July 18, 2011 appellant returned to work for approximately two hours. She filed a
recurrence claim, stating that walking and pressure on her knee caused pain. The employing
establishment controverted the recurrence of disability claim.
Appellant submitted an emergency room record dated July 18, 2011. Dr. Gregory
Neyman indicated that she was brought in by ambulance for recurring right knee pain. The past
medical history noted that she had right knee arthroscopic surgery in June 2010. Examination of
the right knee demonstrated tenderness to palpation, and intact range of motion, distal
neurosensory and pulses. Knee pain was diagnosed.
In reports dated July 28, 2011, Dr. Berger noted that appellant had right knee pain status
post a microfracture for chondromalacia of the lateral tibial plateau for which she had
arthroscopy in June 2010. He advised that she could work eight hours a day with standing and
walking limited to four hours, with no bending, and a five-pound lifting restriction. Dr. Berger
recommended sedentary work. He reiterated his conclusions in an August 9, 2011 report.
Appellant accepted a modified mail processing clerk position, effective August 9, 2011,
under protest. She subsequently filed a claim for compensation for the period August 13
to 26, 2011.
In September 19, 2011 reports, Dr. Berger advised that appellant could not work until
further notice, indicating that her current condition was due to the April 27, 2011 work injury
and recommended a course of right knee injections.
2

The Board notes that appellant’s attorney references a July 16, 2011 recurrence of disability. On appellant’s
recurrence claim dated July 18, 2011, she indicated that she sustained a recurrence of disability at 2:10 p.m. that day.
Regarding the second recurrence claimed on October 17, 2011 appellant filed a claim alleging that she sustained a
recurrence of disability on August 8, 2011. The August 8, 2011 claimed recurrence has been adjudicated separately
by OWCP and is not at issue in this appeal.

2

By decision dated October 20, 2011, OWCP denied appellant’s claim for a recurrence of
disability for the period July 18 through August 26, 2011 because the medical evidence indicated
that her disability was due to the preexisting microfracture of the right knee lateral tibial plateau.
On October 31, 2011 Dr. Berger advised that appellant could return to work without
restrictions on November 7, 2011. Appellant underwent a number of right knee injections.
Appellant, through her attorney, timely requested a hearing, that was held on
February 6, 2012. She testified that she did not file a workers’ compensation claim for the
June 2010 right knee injury, for which she had surgery. Appellant returned to work in
November 2010 and worked full duty successfully until she felt something pop in her right knee
on April 27, 2011. She stated that she was still limping when she returned to work on July 11,
2011, but experienced severe pain and could not stand or walk and had to be transported to the
emergency room. Appellant stated that Dr. Berger placed restrictions on standing, walking,
bending, and lifting, and the employing establishment had no limited duty within these
restrictions. She indicated that the right knee injections helped and she successfully returned to
full duty on November 6, 2011. Appellant’s attorney contended that the workers’ compensation
nurse pressured Dr. Berger to return appellant to work in July 2011.
In an April 10, 2012 decision, an OWCP hearing representative affirmed the October 20,
2011 decision, finding that appellant did not meet her burden of proof to establish that her
disability for the period July 16 through August 26, 2011 was causally related to the April 27,
2011 employment injury.
On April 13, 2012 appellant’s attorney requested reconsideration. He asserted that the
hearing representative did not fully state the history of the case asserting that Dr. Berger’s reports
were sufficient to establish disability. Counsel resubmitted Dr. Berger’s September 19, 2011
report.
In a nonmerit decision dated April 25, 2012, OWCP denied appellant’s request for
reconsideration on the grounds that appellant’s argument was inaccurate and immaterial and the
evidence submitted was repetitious.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.”3 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial, reliable,
and probative evidence that the disability for which she claims compensation is causally related to
the accepted injury. This burden of proof requires that an employee furnish medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that

3

20 C.F.R. § 10.5(x); R.S., 58 ECAB 362 (2007).

3

conclusion with sound medical reasoning.4 Where no such rationale is present, medical evidence
is of diminished probative value.5
Under FECA, the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in FECA.6 Furthermore, whether a particular
injury causes an employee to be disabled for employment and the duration of that disability are
medical issues which must be proved by a preponderance of the reliable, probative and
substantial medical evidence.7
ANALYSIS -- ISSUE 1
The Board finds this case is not in posture for decision.
OWCP accepted appellant’s claim that she sustained a right knee sprain on
April 27, 2011. Appellant received continuation of pay and wage-loss compensation until
July 18, 2011, when she returned to work for two hours. She filed a recurrence of disability
claim that OWCP denied on October 20, 2011, on the grounds that the medical evidence
indicated that her disability was due to the preexisting microfracture of 2010 that was not
employment related. This decision was affirmed by an OWCP hearing representative on
April 10, 2012 who found that appellant did not meet her burden of proof to establish that the
claimed disability from July 16 through August 26, 2011 was causally related to the April 27,
2011 employment injury.
In a July 14, 2011 report, Dr. Berger, the attending orthopedic surgeon, advised that
appellant could return to work without restrictions. In reports dated July 28 and August 9, 2011,
he advised that appellant had right knee pain due to the microfracture for which she had surgery
in June 2010. Dr. Berger provided restrictions to her physical activity. It was not until
September 19, 2011 that he advised that appellant could not work until further notice and
indicated that her current disability was due to the April 27, 2011 employment injury.
Dr. Berger’s opinion regarding the period of disability at issue is not clear as to the cause of
appellant’s disability beginning July 18, 2011. He provided some support for causal relationship
to the April 27, 2011 injury and his opinion requires clarification. Medical opinion regarding
causal relationship must explain from a medical perspective how the current condition is related
to the injury.8

4

I.J., 59 ECAB 408 (2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

6

20 C.F.R. § 10.5(f); Cheryl Decavitch, 50 ECAB 397 (1999).

7

Fereidoon Kharabi, 52 ECAB 291 (2001).

8

See Joan R. Donovan, 54 ECAB 615 (2003).

4

On remand, OWCP should ask Dr. Berger to clarify his opinion regarding appellant’s
disability for the period claimed. Dr. Berger needs to reconcile the July 14, 2011 release for
work without restrictions with the restrictions he subsequently imposed and his opinion that she
was totally disabled due to the April 27, 2011 employment injury in September. He needs to
clarify whether her disability arises from the accepted knee sprain of April 2011 or is related to
the preexisting 2010 injury, for which surgery was performed. After this and such further
development deemed necessary, OWCP shall issue an appropriate decision.
In light of the Board’s finding issue two is rendered moot.
CONCLUSION
The Board finds this case is not in posture for decision as to whether appellant sustained a
recurrence of disability beginning July 18, 2011.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 25 and 10, 2012 are set aside and the case is remanded to
OWCP for proceedings consistent with this opinion of the Board.
Issued: May 10, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., claiming as widow of S.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Spring Valley, CA, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 06-1937
Issued: March 9, 2007

Oral Argument February 6, 2007

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

JURISDICTION
On August 30, 2006 appellant filed a timely appeal of a June 2, 2006 nonmerit decision
of the Office of Workers’ Compensation Programs, which denied her request for reconsideration.
Because more than one year elapsed between the most recent merit decision of June 9, 2005 to
the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
under 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a). On appeal, appellant contends that the Office failed to
address the medical evidence or address her arguments concerning the statement of accepted
facts.

FACTUAL HISTORY
This case has previously been before the Board. In a January 24, 2000 decision,1 the
Board found that the factual evidence established a compensable factor under Cutler, in that the
employee’s postal route required more than eight hours to prepare and complete.2 The Board
remanded the case to the Office for further development. The facts of the case are set forth in the
Board’s prior decision and are incorporated by reference. The record reflects that, on August 13,
2001, the Office accepted the claim for adjustment disorder with mixed anxiety and depressed
mood. It authorized compensation for the period July 12 to October 23, 1997, the date the
emotional condition was found to have resolved.
The employee died on April 12, 2001. The cause of death listed on the death certificate
was metastatic colon cancer. On September 3, 2003 appellant, the employee’s widow, filed a
claim for survivor’s benefits (Form CA-5) alleging that the employee’s death was causally
related to his accepted employment injury. She submitted medical and factual evidence,
including a copy of the death certificate and a June 20, 2003 report from Dr. Paul Rosch, a
Board-certified internist. Based upon a review of the employee’s medical record and factual
evidence from his occupational disease claim, Dr. Rosch opined that the employee was subjected
to severe and persistent stress at work. He stated that “[a]lthough not easy to prove, it is also my
opinion that job stress contributed to the development and fairly rapid downhill course of his
colon cancer.” Dr. Rosch noted that stress had been shown to accelerate the spread and growth
of malignant tumors as emotional stress “has been shown to depress natural killer cells and other
immune system components responsible for resistance to carcinogens.” He noted exceptions in
attributing the employee’s cancer to stress, but concluded that they could be dismissed in the
employee’s case “because of the well-documented harassment at work he was subject to, the
temporal relationship with his symptoms of colon cancer and the absence of other competent
contributing causes.” Dr. Rosch concluded that the employee’s stress at work contributed to the
development and rapid progression of his colon cancer.
By decision dated March 23, 2004, the Office denied appellant’s claim for survivor’s
benefits, finding that the medical evidence failed to establish that the employee’s death was due
to his employment injury. The Office found that the medical evidence was insufficient to
establish that the employee’s death was causally related to the accepted emotional condition.
On April 21 and May 3, 2004 appellant requested reconsideration. In support of her
request, she presented legal arguments and submitted medical and factual evidence including the
April 30, 2004 report of Dr. Rosch who stated that the employee’s inability to complete his work

1

Docket No. 99-1439 (issued January 24, 2000). On May 26, 1998 the Office denied the employee’s emotional
condition claim on the basis that he failed to establish a compensable factor of employment. An Office hearing
representative affirmed the denial of his claim on December 31, 1998. The Board adopted the decision of the
hearing representative to find that the employee had not substantiated his allegations of harassment or
discrimination.
2

See Lillian Cutler, 28 ECAB 125 (1976).

2

duties in eight hours “created an atmosphere of severe and persistent stress.” Dr. Rosch opined
that this type of stress, when associated with overwork and fatigue, “can weaken immune system
resistance to cancer.”
On August 16, 2004 the Office received a report by Dr. Suresh B. Katakkar, a second
opinion Board-certified internist with a subspecialty in medical oncology. Dr. Katakkar
reviewed the employee’s medical records, a statement of accepted facts and the reports of
Dr. Rosch. He opined that he did not believe that the employee’s stress had induced the cancer.
Dr. Katakkar generally agreed with Dr. Rosch that “stress can cause a problem over a period of
time.”
By decision dated August 20, 2004, the Office denied modification of the March 23,
2004 decision.
In a supplemental report dated September 7, 2004, Dr. Katakkar opined that the
employee’s colon cancer was unrelated to the accepted condition of mixed anxiety disorder or
adjustment disorder. He stated that employee’s accepted depression did not cause or induce his
cancer.
By decision dated September 22, 2004, the Office denied modification of the August 20,
2004 decision. It found that the weight of the medical opinion evidence of record was
represented by Dr. Katakkar.
On October 12, 2004 appellant requested reconsideration. She contended that the
statement of accepted facts should be revised to include harassment and retaliation as
compensable factors of employment. Appellant submitted two pages of an April 24, 2002 Equal
Employment Opportunity Commission (EEOC) decision in support of her request.
By decision dated January 12, 2005, the Office denied modification of the September 22,
2004 decision.
In a letter dated March 8, 2005, appellant requested reconsideration and submitted a
report from Dr. Bernard S. Siegel, a Board-certified surgeon, who reviewed the employee’s
medical records and work history and indicated his agreement with Dr. Rosch. Dr. Siegel stated
that the work stress the employee was under “contributed to the rapid progression of his disease.”
By decision dated June 9, 2005, the Office denied modification of the January 12, 2005
decision.
By letter dated May 15, 2006, appellant requested reconsideration. She submitted
arguments pertaining to the medical evidence of record. Appellant also submitted a copy of the
transcript of proceedings before Administrative Judge Dennis Carter in her husband’s EEOC
claim and a letter from Bruce Lane, the employee’s former supervisor and manager of human
resources at the employing establishment. She contended that this evidence warranted
modification of the statement of accepted facts to accept harassment as a compensable work
factor.

3

By decision dated June 2, 2006, the Office denied appellant’s request for reconsideration
on the grounds that the evidence submitted was insufficient to warrant further merit review of the
case.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act3 provides under section 8128(a) that the
Office may review an award for or against payment of compensation at any time on its own
motion or upon application.4 The employee shall exercise this right through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.5
An employee seeking reconsideration should send the application for reconsideration to
the address as instructed by the Office in the final decision. The application for reconsideration,
including all supporting documents, must be in writing and must set forth arguments and contain
evidence that either: (1) shows that the Office erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent new evidence not previously considered by the Office.6
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.7 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.8
ANALYSIS
In the prior appeal, the Board issued a January 24, 2000 decision on the employee’s claim
of an employment-related emotional condition, for which he was disabled from July 11 to
October 28, 1997. The Board found that the record established a compensable factor of
employment under Cutler, namely that his postal route required more than eight hours to prepare
and complete.9 The Board also adopted the December 31, 1998 decision of an Office hearing
representative to find that his allegations of harassment and discrimination were not factually
3

5 U.S.C. §§ 8101 et seq.

4

5 U.S.C. § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB ___ (Docket No. 06-121, issued June 6, 2006).

5

20 C.F.R. § 10.605.

6

Id. at § 10.606. See Susan A. Filkins, 57 ECAB ___ (Docket No. 06-868, issued June 16, 2006).

7

Id. at § 10.607(a). See Joseph R. Santos, 57 ECAB ___ (Docket No. 06-452, issued May 3, 2006).

8

Id. at § 10.608(b). See Candace A. Karkoff, 56 ECAB ___ (Docket No. 05-677, issued July 13, 2005).

9

See supra note 2.

4

established. The case was remanded to the Office for further development. On August 13, 2001
the Office accepted that the employee sustained an adjustment disorder with mixed anxiety and
depressed mood for the claimed period. Compensation benefits were awarded from July 12 to
October 23, 1997.
On April 12, 2001 the employee passed away following treatment for colon cancer.
Appellant, his widow, has pursued a claim since 2003 contending that his death was contributed
to by stress arising in his federal employment from incidents of harassment and discrimination.
The prior Office merit decisions have noted that the statement of accepted facts prepared in this
case, premised on the Board’s 2000 decision, “cannot be altered pending the receipt of credible,
factual evidence….”10
The June 2, 2006 decision of the claims examiner sets forth the arguments raised by
appellant with her request for reconsideration. Her first four arguments addressed the quality of
the medical evidence previously of record and, following a limited review, the claims examiner
noted that no new medical evidence was submitted since the June 9, 2005 merit decision. In this
respect, the claims examiner properly found that appellant had not provided a basis for further
merit review. However, the claims examiner went on to examine the fifth and sixth points raised
by appellant: her argument that there is more than one compensable factor giving rise to the
employee’s emotional condition.
Appellant submitted new factual evidence to the record consisting of three volumes of
transcripts related to a proceeding before the EEOC and the comments of the presiding
Administrative Judge. She also submitted a statement from the employee’s former superior. The
June 2, 2006 decision addresses this material, stating: “[t]he additional findings concerning the
factual evidence are incidental since the denial of the claim is due to a failure to establish causal
relationship.” To this extent, the claims examiner applied an improper standard to the evidence
submitted by appellant.
It is well established that the requirement for reopening a claim for further merit review
before the Office does not include the necessity that claimant submit all evidence necessary to
discharge his or her burden of proof.11 Rather, the requirement for reopening a case specifies
only that the evidence be relevant, pertinent and not previously considered by the Office.12 The
presentation of such new evidence creates the necessity for review of the full case record in order
to properly determine whether the newly submitted evidence would warrant modification of an
earlier decision. Analyzing whether a claimant established causal relationship is not the proper
standard for determining whether a case should be reopened for merit review. Rather, it is a
standard applicable when conducting a merit review.13

10

See September 22, 2004 decision of the Office, page 2. The statement of accepted facts appears premised on
the Board’s January 24, 2000 decision.
11

See Sydney W. Anderson, 53 ECAB 347 (2002); Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

12

20 C.F.R. § 10.606(b)(2)(iii).

13

See Joseph L. Cabral, 44 ECAB 152, 156 (1992).

5

The error in the claims examiner’s decision is that he does not apply the regulatory
standard to the evidence submitted. Rather, he articulated an “incidental” standard: “[t]he
additional findings concerning the factual evidence are incidental since the denial of the claim is
due to a failure to establish causal relationship.” The Office previously denied amending the
statement of accepted facts pertaining to the accepted compensable factor absent the receipt of
new credible, factual evidence. Appellant submitted new factual evidence to the Office with her
reconsideration request, arguing that the materials from the EEOC proceedings and statement of
decedent’s former superior substantiated his allegations of harassment. This was sufficient to
require further merit review by the Office. As the June 2, 2006 decision stands, the reference to
“[t]he additional factual findings” is obscure. There is no definitive finding of fact or statement
of reason as to whether the evidence submitted by appellant is sufficient to establish an
additional compensable factor or to modify the statement of accepted facts.
The Board previously accepted a compensable employment factor under Cutler. In turn,
it relied on the 1998 finding of an Office hearing representative to deny harassment or
discrimination as being factually established. Appellant supplemented the record in 2006 with
new factual evidence relevant to these prior factual determinations. If this evidence is sufficient
to establish harassment, as alleged, the Office would have to consider how such a factor pertains
to the medical evidence of record. If the Office finds that the evidence does not establish
harassment, as alleged, the basis for such a factual finding should be made clear after appropriate
merit review.
CONCLUSION
The Board finds the Office improperly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128.

6

ORDER
IT IS HEREBY ORDERED THAT the June 2, 2006 decision of the Office of Workers’
Compensation Programs be set aside. The case is remanded to the Office for further action
consistent with this decision.
Issued: March 9, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 09-932
Issued: August 11, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On February 9, 2009 appellant filed a timely appeal from July 11 and December 12, 2008
decisions of the Office of Workers’ Compensation Programs denying her occupational disease
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the claim.
ISSUE
The issue is whether appellant has established that she sustained an emotional condition
in the performance of duty.
FACTUAL HISTORY
On February 7, 2008 appellant, then a 55-year-old administrative officer, filed an
occupational disease claim (Form CA-2) claiming that, on or before January 2, 2008, she
sustained major depression, anxiety attacks, migraine headaches, impaired functioning and loss
of self-esteem because the employing establishment allegedly refused to provide an ergonomic
workstation in accordance with her physician’s instructions.

In a March 12, 2008 letter, the Office advised appellant of the evidence needed to
establish her claim, including a detailed description of the alleged work factors and rationalized
medical evidence supporting a causal relationship between those incidents and the claimed
conditions.
In April 1 and 3, 2008 letters, the employing establishment asserted that it followed all
physician requests for ergonomic modifications to appellant’s workstation. This included
replacing her desk, adjusting the height of the desk and offering her a telephone headset.
However, appellant refused to comply with the ergonomic specialist’s recommendations. She
contested in an April 13, 2008 letter that the ergonomic modifications were ineffective.
Appellant submitted additional evidence.1
Employing establishment memoranda from an ergonomic specialist demonstrate that
from February 5 to November 15, 2004, appellant was provided with an ergonomically correct
keyboard tray,2 type stand, chair, chair cushion, footrest, document holder, two computer mice
and a mouse pad. She was also instructed on proper placement of her computer, chair and desk
equipment. An August 23, 2005 ergonomic survey noted appellant’s refusal to comply with
chair adjustments made by the ergonomic specialist.
In an August 2005 report, Dr. John T. Harbaugh, an attending Board-certified family
practitioner, recommended raising the height of appellant’s desk, that her monitor be straight and
centered on her desk, that she keep her computer mouse close to her keyboard and use a
document holder, keyboard tray and adjustable chair.
A November 29, 2007 ergonomic survey recommended raising the height of appellant’s
desk and repositioning her keyboard. She was given a new computer and chair cushion on
December 5, 2007. In memoranda through March 24, 2008, the ergonomic specialist stated that
appellant’s refusal to position her computer as instructed prevented installation of a requested
monitor arm.
In a March 25, 2008 letter, appellant advised her supervisor that she felt strained and
twisted while sitting at her desk. She contended that the desk risers narrowed her walking space
and that a monitor arm was not installed. In an April 3, 2008 memorandum, an ergonomic
specialist explained that appellant felt twisted because she refused to position her computer and
keyboard as instructed. Also, the blocks used to raise appellant’s desk were only three quarters
of an inch wider than the desk legs and did not affect her walking space.

1

In a January 21, 2008 report, Dr. John T. Harbaugh an attending Board-certified family practitioner, diagnosed
degenerative arthritis in both feet, aggravated by an accepted April 30, 2004 left foot contusion. Dr. John Barchilon,
an attending Board-certified internist, released appellant to full duty as of February 28, 2008. In a March 25, 2008
report, Dr. Siva Ayyar, an attending physician specializing in occupational medicine, recommended an ergonomic
evaluation and unspecified restrictions.
2

Appellant had several prior claims accepted which are not before the Board on the present appeal. The Office
accepted neck back and shoulder strains sustained on or before January 17, 2000, right carpal tunnel syndrome and
left radial styloid tenosynovitis sustained on or before January 14, 2004, a left foot contusion sustained on April 30,
2004 when a keyboard tray fell on her foot and a lumbosacral strain sustained in April 2005.

2

By decision dated July 11, 2008, the Office denied appellant’s claim on the grounds that
she failed to substantiate any compensable factors of employment. It found that, while there
were documented ergonomic deficiencies in appellant’s workstation, the employing
establishment made numerous modifications to correct the problems. However, the employer
could not complete the modifications due to appellant’s refusal to position equipment as
instructed. The Office noted that appellant did not submit medical evidence regarding a
psychiatric condition.
In an August 5, 2008 letter, appellant requested a review of the written record. She
submitted a March 28, 2008 report from Dr. Siva Ayyar, an attending physician specializing in
occupational medicine, who diagnosed chronic neck pain and cervical stenosis. Dr. Ayyar
recommended unspecified adjustments to appellant’s workstation. In June 11 and 16, 2008
reports, Dr. Adrian Mirea, an attending Board-certified psychiatrist, limited appellant to working
four hours a day with restrictions.
By decision dated and finalized December 12, 2008, an Office hearing representative
affirmed the July 11, 2008 decision, finding that appellant provided insufficient evidence that the
employing establishment failed to comply with her medical restrictions. The hearing
representative found that appellant’s refusal to cooperate with the ergonomic specialist’s
instructions made it impossible for the employing establishment to provide an appropriate
workstation. Therefore, the claimed emotional condition was not related to appellant’s federal
employment. As there were no covered work factors, the hearing representative did not consider
the medical evidence.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed

3

5 U.S.C. §§ 8101-8193.

4

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).

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factors of employment and may not be considered.5 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6
ANALYSIS
Appellant alleged that she sustained depression and anxiety as a result of the employing
establishment’s failure to provide ergonomically correct equipment in compliance with her
physician’s instructions. The Office found that the employing establishment made repeated,
significant attempts to comply with her physician’s directives. Therefore, the Board must review
whether appellant submitted sufficient evidence to establish her allegations as factual,
compensable employment factors under the terms of the Act.
The only ergonomic modifications directed by a physician were provided in August 2005
by Dr. Harbaugh, an attending Board-certified family practitioner, who recommended raising
appellant’s desk, use of a document holder, keyboard tray and adjustable chair, and that
appellant’s monitor be ergonomically centered. The assignment of office equipment is
considered an administrative function of the employing establishment and not within the duties
of the employee.7 However, the Board has found that an administrative or personnel matter will
be considered to be an employment factor where the evidence discloses error or abuse on the part
of the employing establishment. In determining whether the employing establishment erred or
acted abusively, the Board has examined whether the employing establishment acted
reasonably.8
From February 2004 to November 2007, the employing establishment provided appellant
an ergonomically correct desk, document holder, keyboard tray, adjustable chair, footrest,
computer mice and mouse pad. An ergonomic specialist met with her several times to adjust the
equipment and instruct appellant in its proper use. The employing establishment provided the
items prescribed by Dr. Harbaugh and continued to assist appellant despite her refusal to comply
with adjustments to her chair, computer and keyboard. Therefore, the Board finds that the
employing establishment acted reasonably with regard to providing the prescribed ergonomic
equipment.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty as she failed to establish the alleged factor as factual. As
5

See Norma L. Blank, 43 ECAB 384 (1992).

6

Id.

7

Harriet J. Landry, 47 ECAB 543 (1996).

8

See Richard J. Dube, 42 ECAB 916, 920 (1991).

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appellant has not established any compensable work factors, the medical record need not be
addressed.9
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 12, 2008 is affirmed.
Issued: August 11, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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Margaret S. Krzycki, 43 ECAB 496, 502 (1992).

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

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

Docket No. 06-2111
Issued: March 2, 2007

Case Submitted on the Record

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

JURISDICTION
On September 18, 2006 appellant filed a timely appeal from an April 3, 2006 decision of
the Office of Workers’ Compensation Programs’ hearing representative who affirmed the denial
of her claim for a schedule award. 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 appellant has established that she is entitled to a schedule award for
a permanent impairment to a scheduled member of the body under 5 U.S.C. § 8107.
FACTUAL HISTORY
On October 15, 1998 appellant, then a 40-year-old mail processor, filed an occupational
disease claim alleging that on July 3, 1991 she first realized her lower back condition was due to

her employment duties. The Office accepted the claim for temporary exacerbation of preexisting
L5-S1 degenerative disc disease.1
In a report dated June 26, 2001, Dr. David Weiss, an osteopath, noted a history of
appellant’s work injuries. He diagnosed cumulative and repetitive trauma disorder, bilateral
carpal tunnel syndrome, left lumbar radiculitis, chronic lumbosacral sprain and strain, left lumbar
radiculitis and status post right endoscopic carpal tunnel syndrome release. Dr. Weiss concluded
that appellant reached maximum medical improvement on June 19, 2001. He opined that in
accordance with the fifth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment,2 (A.M.A., Guides) appellant sustained a 38 percent impairment of the
right upper extremity,3 a 38 percent impairment of left upper extremity,4 and a seven percent
impairment of the left lower extremity.5
On November 1, 2001 appellant filed a claim for a schedule award.
The Office referred appellant for a second opinion examination by Dr. Steven J.
Valentino, an osteopath, for a determination of any permanent impairment as a result of her
July 3, 1991 employment injury. On April 30, 2002 Dr. Valentino reported on a physical
examination, review of the medical evidence and statement of accepted facts. He diagnosed
resolved aggravation of preexisting L4-5 degenerative disc disease. Dr. Valentino concluded
that appellant sustained no permanent employment injury and had no impairment. He reported
that an MRI scan “showed no basis for radiculopathy.” Dr. Valentino also noted that there was
“no evidence of compression on an exiting nerve root.”
The Office found a conflict of medical opinion between Dr. Weiss and Dr. Valentino. On
April 4, 2003 it referred appellant to Dr. Barry A. Silver, a Board-certified orthopedic surgeon,
for an impartial medical examination. The Office asked Dr. Silver to provide an opinion as to
whether the accepted conditions had caused any permanent impairment.
On May 16, 2003 Dr. Silver reviewed the medical records and provided a history and
results on examination. He reported that appellant “has had intermittent symptoms and
intermittent treating.” A physical examination revealed negative Waddell’s sign, generalized
tenderness to palpation at the lumbar area, no spasm, no evidence of atrophy in the lower
extremities and “she got every test right in terms of response to pinprick in her legs.” Dr. Silver
reported that a May 2001 MRI scan showed degenerative disc disease, “a high intensity signal in
the posterior annulus at L5-S1,” and “central indentation on the thecal sac.” He determined that
1

The record contains conflicting evidence as to whether the Office accepted the condition of herniated nucleus
pulposus (HNP). In a July 18, 2003 note, the Office informed the Office medical adviser that appellant’s claim had
been expanded to include the condition of HNP. Subsequently the Office noted a herniated disc was not accepted
“as the MRI [magnetic resonance imaging] scan results have not confirmed that this condition exists.”
2

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

3

Id. at 509, Tables 16-21 and 16-34, at 492, Table 16-15 and at 482, Table 16-10.

4

Id.

5

Id. at 424, Tables 15-15 and 15-18 and at 574, Figure 18-1.

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appellant developed a L5-S1 left side and central lateral disc herniation due to her work-related
incident in 1991. He noted his agreement with Dr. Weiss and disagreement with Dr. Valentino
regarding appellant’s condition. With respect to appellant’s permanent impairment as a result of
her lumbar injury, he stated:
“I think she would fit best into what would be called the DRE or DiagnosisRelated-Estimates regarding lumbar pathology that would fit into the DRE
Lumbar Category #2 of minor impairment, that is, someone with some radicular
symptoms but very little in the way of objective finding and intermittent problems
and would fit a pattern of about five percent overall body loss of function or a five
percent impairment to fit this category. She lacks any objective change other than
the MRI [scan] but is to be awarded the impairment based on subjective
radiculopathy and her MRI [scan] report in my opinion.”
On July 18, 2004 the Office referred the medical evidence to an Office medical adviser.
In an undated report, he opined that appellant had a three percent impairment of the left leg and a
three percent impairment of the right leg.6 The medical adviser based these ratings on the
findings of “intermittent bilateral symptoms along L5 nerve root” by Dr. Silver.
On August 21, 2003 the Office requested that Dr. Silver provide clarification regarding
his impairment rating. The Office informed him that whole person ratings are not permitted
under the Federal Employees’ Compensation Act and that “[i]n back cases, a rating of
impairment of the lower extremities is required.”
In a supplemental report dated August 23, 2003, Dr. Silver stated:
“I think it is unfortunate that the Act does not concur with the guides (sic) to
evaluation of permanent impairment that is the present standard by the [A.M.A.,
Guides] and which is the impairment rating that most disability evaluators are
presently using for evaluation of injuries to the lumbar spine. I have been very
specific about the impairment as far as total body impairment that this patient
suffered as a result of her injury and that fits the [A.M.A., Guides,] or DRE
category as in the fourth and fifth editions, that is the way things are done. The
[A.M.A., Guides] is no longer using range of motion methods of impairment. The
reason for this is because a patient like [appellant] has no loss of movement in her
lower extremities and no neurologic deficit. That is why the new diagnoses
related to impairments were decided upon by an ad hoc committee of specialists
in this field.”
On September 30, 2003 the Office referred Dr. Silver’s August 23, 2003 supplemental
report to an Office medical adviser. On October 6, 2003 he stated that appellant had no ratable
impairment. The Office medical adviser noted that Dr. Silver found no motor or sensory
impairment and no loss of movement. As these were the only factors which could be rated for
schedule award in her low back claim, she had no ratable impairment under the Act.
6

Id. at 424, Tables 15-15 and 15-18.

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By decision dated October 23, 2003, the Office denied appellant’s claim for a schedule
award.
In a letter dated October 28, 2003, appellant’s counsel requested an oral hearing which
was held on June 30, 2004.
By decision dated October 18, 2004, the Office hearing representative found that the case
was not in posture for a decision. She remanded the case to the Office to obtain a supplemental
report from the Office medical adviser regarding why he did not use Dr. Silver’s diagnosed
based impairment.
In a report dated December 1, 2004, another Office medical adviser concluded that
appellant was not entitled to a schedule award. He noted the lack of sensory or motor loss of
function found by Dr. Silver. As there was no motor or sensory deficit found by Dr. Silver upon
clinical evaluation, the Office medical adviser concluded that it was inappropriate to have a
schedule award based upon radiculopathy.
In a decision dated February 16, 2005, the Office determined that appellant was not
entitled to a schedule award based on the evidence of record.
On February 22, 2005 appellant’s counsel requested an oral hearing which was held on
February 7, 2006.
By decision dated April 3, 2006, the Office hearing representative affirmed the
February 16, 2005 decision.
LEGAL PRECEDENT
The schedule award provision of the Act7 and its implementing regulation8 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, the Act 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.9
Section 8123(a), in pertinent part, provides: If there is a 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.10 In situations where
7

5 U.S.C. §§ 8101-8193.

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

5 U.S.C. § 8123(a).

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there are opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.11
In order to properly resolve a conflict in the medical opinion evidence with respect to a
schedule award, it is the referee examiner who should provide a reasoned medical opinion as to a
permanent impairment to a scheduled member of the body in accordance with the A.M.A.,
Guides. An Office medical adviser may review the opinion, but resolution of the conflict is the
responsibility of the referee examiner.12
ANALYSIS
Appellant contends that she is entitled to a schedule award for permanent impairment of
the left lower extremity and the back. The Office accepted appellant’s claim for temporary
exacerbation of a preexisting L5-S1 degenerative disc disease. However, as noted, the Act does
not permit a schedule award based on impairment to the back or spine. Appellant may only be
awarded a schedule award for impairment to the upper and lower extremities due to her accepted
back condition.
The Office found a conflict in medical opinion existed between Dr. Weiss, appellant’s
examining physician, and Dr. Valentino, an Office referral physician. The conflict arose as to
whether appellant had any permanent impairment of the lower extremities. The Office properly
referred appellant to Dr. Silver to resolve the conflict.
In a May 16, 2003 report, Dr. Silver discussed appellant’s condition pursuant to the
A.M.A., Guides. However, he did not refer to specific page numbers, charts or tables for his
impairment rating. It appears that Dr. Silver was addressing appellant’s impairment in
conjunction with whole person impairment. However, as the Board has held, a schedule award is
not payable under the Act for impairment of the whole person.13 Accordingly, due to these
deficiencies in the report of the impartial medical examiner, his report did not establish
appellant’s degree of impairment under the Act. The Office properly requested that Dr. Silver
submit a supplemental report to address these deficiencies. On August 23, 2003 Dr. Silver
estimated that appellant had a five percent whole person permanent impairment based upon her
radicular symptoms. He noted that the impairment rating was based upon appellant’s subjective
radiculopathy. Dr. Silver stated his disagreement with the Act regarding impairment ratings and
the lumbar spine. He did not address the deficiencies noted by the Office. As Dr. Silver’s
medical reports were not responsive to the Office’s inquiry, it should have referred appellant for
a second impartial examination. The conflict in medical opinion remains unresolved.

11

Darlene R. Kennedy, 57 ECAB ___ (Docket No. 05-1284, issued February 10, 2006).

12

See Richard R. LeMay, 56 ECAB ____ (Docket No, 04-1652, issued February 16, 2005); see also Thomas J.
Fragale, 55 ECAB 619 (2004).
13

Gordon G. McNeill, 42 ECAB 140 (1990).

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On remand, the Office should refer appellant, the case record and a statement of accepted
facts to a second impartial medical specialist to determine the extent and degree of any
employment-related impairment resulting from her accepted injury. After such further
development as the Office deems necessary, an appropriate decision should be issued regarding
the extent of appellant’s impairment.
CONCLUSION
The Board finds that this case is not in posture for a decision as there is an unresolved
conflict in the medical opinion evidence regarding the extent and degree of any employmentrelated impairment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 3, 2006 is set aside and the case is remanded for further
proceedings consistent with the above decision.
Issued: March 2, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Denver, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2209
Issued: September 3, 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 7, 2008 appellant filed a timely appeal from a May 15, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration. As more than one year has elapsed between the filing of this appeal and the
most recent merit decision, the Board lacks jurisdiction to review the merits of the case.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the May 15, 2008
nonmerit decision.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for further
consideration of the merits of his case under 5 U.S.C. § 8128.

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20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
On January 9, 2005 appellant, then a 53-year-old housekeeper aid, filed a recurrence of
disability claim on December 26, 2005 causally related to an August 14, 2003 work injury. He
related that when he “went to sit down in to the chair it moved and I went down.” On the
reverse side of the claim form, appellant’s supervisor noted that he worked light duty due to a hip
injury unrelated to his employment. In an accompanying statement, appellant attributed his
condition to numerous falls while using a buffer on slippery floors. He further maintained that
performing his work duties from 1980 to 2001 resulted in a hip condition.
On January 18, 2006 the Office noted that it was converting the notice of recurrence of
disability into a claim for a traumatic injury. By decision dated September 6, 2006, it denied
appellant’s claim on the grounds that he did not establish that he sustained a medical condition
due to the accepted work incident.
In a statement dated February 21, 2007, appellant described in detail his duties as a
housekeeping aid. He asserted that performing his work duties resulted in pressure on his right
hip and required continual bending and twisting.
On February 22, 2007 appellant, through his attorney, requested reconsideration of the
September 6, 2006 decision denying his “occupational injury claim for the right hip.” By
decision dated May 22, 2007, the Office denied modification of its September 6, 2006 decision.
It noted that appellant originally filed a recurrence of disability claim under file number
xxxxxx964 which “was a short form closure case for an incident which occurred on
August 14, 2003. This claim was never formally adjudicated thus there [were] no accepted
conditions.” The Office found that appellant’s statement with the notice of recurrence of
disability attributed his condition to repetitive falls but that on the form he described a specific
injury occurring in December 2005. It stated, “These are two distinct allegations, one, a
traumatic injury which occurred on December 20, 2005 and the other, an occupational condition
which is attributed to work factors causing a condition over a period of time.” The Office found
that appellant did not establish a traumatic injury on December 20, 2005 because the medical
evidence was insufficient to show that he sustained an injury on that date when he fell from a
chair that moved. It further determined that appellant did not establish an occupational disease
claim because he did not establish as factual that he sustained multiple falls in the performance
of duty.
On March 27, 2008 appellant, through his attorney, requested reconsideration. Counsel
argued that the Office erred in failing to analyze whether work activities caused his right hip
condition. He noted that appellant, in his January 9, 2006 statement, attributed his condition to
using his right hip working with the buffer and numerous falls on slippery floors. Counsel
related that the employing establishment did not dispute appellant’s description of his work
duties. He maintained that the Office erred in failing “to consider the effect of these work
activities, in conjunction with other evidence result[ed] in an occupational right-hip condition.”
Counsel indicated that appellant did not report his falls to the employment establishment because

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they were not separate traumatic injuries but instead were only significant as an aggravating
factor in his occupational disease.
In a report dated February 19, 2008, Dr. Stewart K. Weinerman, a Board-certified
orthopedic surgeon, evaluated appellant for “long-standing osteoarthritis in his right hip.” He
noted that he had treated appellant since 2001 for right hip arthritis.2 Dr. Weinerman found that
appellant could not perform normal activities and recommended a total hip arthroplasty.
Appellant also resubmitted medical reports from Dr. Weinerman dated May 19 and
June 30, 2005, May 8 and September 21, 2006 and April 2, 2007 and witness statements dated
January 13, 2006.
By decision dated May 15, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant reopening
the case for further review of the merits under section 8128. It found that the underlying issue
was whether appellant had established that he sustained a traumatic injury occurring on
December 20, 2005 in the performance of duty. The Office indicated that appellant could file an
occupational disease claim.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.4 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.5 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.6
ANALYSIS
The Office in its most recent merit decision dated May 22, 2007 found that appellant had
not submitted medical evidence sufficient to establish that he sustained a traumatic injury on
December 26, 2005. It further determined that appellant had not factually established that he
2

Appellant also submitted a November 19, 2001 work restriction evaluation form from Dr. Weinerman, who
found that he could perform sedentary work eight hours per day.
3

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

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experienced numerous falls at work from 1980 to 2001; consequently, the Office found that he
failed to establish that he sustained an occupational disease of the right hip.
On February 22, 2007 appellant’s attorney requested reconsideration. He argued that the
Office erred in failing to consider appellant’s allegation that the performance of his work duties
from 1980 to 2001 resulted in a right hip condition. In denying appellant’s request for
reconsideration, the Office identified the underlying issue as whether he sustained a traumatic
injury on December 26, 2005. In its prior merit decision of May 22, 2007, however, it
considered his allegation that he sustained an occupational disease but found that he failed to
factually establish that he sustained numerous falls in the course of his federal employment.
Counsel argued on reconsideration that the Office should have considered appellant’s contention
that the performance of his work duties as a housekeeping aid over a 20-year period resulted in
an occupational disease. His argument is new and relevant to the issue of whether the Office
properly adjudicated appellant’s occupational disease claim.7 Consequently, the Board finds that
it improperly denied his request for review of the merits of the claim. The case will be remanded
to the Office to conduct an appropriate merit review of the claim. Following this and such other
development as deemed necessary, the Office shall issue a merit decision on the claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 15, 2008 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: September 3, 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
7

See Gregory Apicos, 51 ECAB 272 (2000).

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