United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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Appearances:
John E. Goodwin, Esq., for the appellant
No Appearance: for the Director

Docket No. 08-2218
Issued: August 7, 2009

Oral Argument May 19, 2009

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 12, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 21, 2008 merit decision denying his claim for wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant is entitled to wage-loss benefits for total disability
beginning August 10, 2007.
On appeal, appellant’s representative contends that the employing establishment
withdrew his light-duty position (terminated him) for medical reasons related to his accepted
carpal tunnel syndrome. He argues that, therefore, appellant was disabled due to the accepted
injury and is entitled to compensation for lost wages effective August 10, 2007.

FACTUAL HISTORY
On May 16, 2005 appellant, then a 50-year-old marine machinery mechanic, filed an
occupational disease claim alleging that he had developed carpal tunnel syndrome as a result of
employment activities.1 The Office accepted his claim for right carpal tunnel syndrome.
Appellant underwent right carpal tunnel syndrome release surgery in February 2006 and returned
to light duty as a traffic controller on April 26, 2006.2
On March 22, 2007 Dr. David M. Gent, a podiatrist, recommended permanent restrictions
limiting appellant’s exposure to cold to less than 10 percent of his time, due to “questionable
vascular complications when exposed to cold.” On April 2, 2007 a physician at the employing
establishment health clinic reiterated permanent restrictions limiting appellant’s exposure to cold
to less than 10 percent of his time.
On June 15, 2007 the employing establishment notified appellant of its intent to terminate
his employment due to his inability to perform his assigned duties for medical reasons. It stated
that the duties of appellant’s position, which included exposure to extreme temperatures, did not
comply with the April 2, 2007 permanent restrictions, which limited him to “seldom exposure”
to cold. The employing establishment further stated that his duties as a marine machinery
mechanic could not be restructured to enable him to perform the duties of his permanent position
without undue hardship for the employing establishment, and that the injured workers’ program
(IWP) was not able to locate a vacant, funded position for which he was qualified and able to
perform. He was informed of his right to respond to the proposed termination within 10 days.
On June 26, 2007 the employing establishment informed appellant that he was being
terminated due to his inability to perform the duties of his modified position and the
establishment’s inability to accommodate his new restrictions. It noted that appellant had failed
to submit a verbal or written response to its June 15, 2007 letter.
The record reflects that the Office accepted the conditions of left carpal tunnel syndrome
and left medial epicondylitis under File No. xxxxxx287. On June 27, 2007 appellant underwent
approved left carpal tunnel release surgery under that claim, and the Office began paying
compensation for temporary disability at that time. Appellant’s physician, Dr. Bruce Wheeler, a
Board-certified orthopedic surgeon, released him to work as of July 30, 2007, with no
1

This case was previously before the Board. By decision dated August 6, 2007, the Board reversed the Office’s
August 30, 2006 decision denying wage-loss claims from March 24 through April 21, 2006. Docket No. 06-2033
(issued August 6, 2007). In a March 19, 2008 decision, the Board reversed the Office’s August 24, 2007 decision,
which terminated appellant’s entitlement to compensation benefits on the grounds that he refused suitable
employment. Docket No. 07-2233 (issued March 19, 2008).
2

On April 24, 2006 Dr. Brian Wicks, a Board-certified orthopedic surgeon, released appellant to work full time
with restrictions, which precluded the use of vibrating or impact tools; the use of his hands on a repetitive basis;
twisting or gripping motions, climbing vertical ladders, squatting, kneeling or reaching overhead. The record
contains a March 13, 2006 light-duty job offer for the traffic controller position, which involved monitoring traffic
on a pier while industrial work was accomplished nearby and was in compliance with Dr. Wick’s job restrictions.
On April 24, 2006 Dr. Wicks opined that the traffic control position was “appropriate.”

2

restrictions on the left hand and permanent restrictions on the right as previously delineated. The
Office paid compensation from June 27 through August 4, 2007.
Appellant filed a claim for total disability beginning August 10, 2007. On May 2, 2008
Barbara Yoshino of the employing establishment informed the claims examiner that appellant
was terminated because the employing establishment could not accommodate his “restrictions on
a nonoccupational condition,” and that the traffic controller position was still available at the
time he was removed.
Appellant submitted a May 28, 2007 report of lower extremity arterial testing, which
showed no evidence of significant peripheral arterial disease at rest in either leg. He also
submitted a June 23, 2008 report from Dr. Gent, who stated that appellant had no significant
peripheral artery disease.
By decision dated July 21, 2008, the Office denied appellant’s claim for compensation
beginning August 10, 2007 on the grounds that his disability (removal from employment) was
not related to his accepted condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of proof to establish the essential elements of his claim by the weight of the evidence.3
For each period of disability claimed, the employee has the burden of establishing that he was
disabled for work as a result of the accepted employment injury.4 Whether a particular injury
causes an employee to become disabled for work and the duration of that disability, are medical
issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.5 To meet his burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.6
Under the Act, the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.7 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.8 An employee who has a physical impairment causally related to his federal
employment, but who nonetheless has the capacity to earn the wages he was receiving at the time
3

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
4

See Amelia S. Jefferson, supra note 3; see also David H. Goss, 32 ECAB 24 (1980).

5

See Edward H. Horton, 41 ECAB 301 (1989).

6

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

7

S.M., 58 ECAB ___ (Docket No. 06-536, issued November 24, 2006); Bobbie F. Cowart, 55 ECAB 746 (2004);
Conard Hightower, 54 ECAB 796 (2003); 20 C.F.R. § 10.5(f).
8

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

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of injury, has no disability and is not entitled to compensation for loss of wage-earning capacity.9
When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his employment, he is entitled to compensation for any loss of wages.10
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence
establishes that he can perform the limited-duty position, the employee has the burden of proof to
establish a recurrence of total disability and that he cannot perform such limited-duty work. As
part of this burden, the employee must show a change in the nature or extent of the injury-related
condition or a change in the nature and extent of the light-duty job requirements.11
The Office’s definition of 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.
The term also means the inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn, except for when such withdrawal occurs for reasons of
misconduct, nonperformance of the job duties, or a reduction-in-force (RIF).12 The Board has
held that when a claimant stops work for reasons unrelated to the accepted employment injury,
there is no disability within the meaning of the Act.13
When a light-duty position is withdrawn, it is appellant’s burden to establish that any
increase in disability for work is due to the accepted injury, rather than another cause.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he was
totally disabled beginning August 10, 2007. Appellant returned to work in a light-duty
assignment made specifically to accommodate his physical limitations due to his work-related
injury. He has not alleged a change in the nature or extent of the injury-related condition.15
Rather, appellant alleges that his light-duty position was improperly withdrawn, and that he,
therefore, is entitled to compensation benefits for total disability.
9

Merle J. Marceau, 53 ECAB 197 (2001).

10

Id.

11

See John I. Echols, 53 ECAB 481 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

12

See 20 C.F.R. § 10.5(x).

13

See John I. Echols, supra note 11; John W. Normand, 39 ECAB 1378 (1988). Disability is defined to mean
the incapacity because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total. See 20 C.F.R. § 10.5(f).
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7.a(1) (May 1997).

15

See John I. Echols, supra note 11; Terry R. Hedman, supra note 11.

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Office regulations provide that a claimant sustains a recurrence of disability when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn, except when such withdrawal occurs for
reasons of misconduct, nonperformance of the job duties, or a RIF.16 The Board has held that
when a claimant stops work for reasons unrelated to the accepted employment injury, there is no
disability within the meaning of the Act.17 In this case, the evidence establishes that appellant’s
light-duty position as a traffic control person was withdrawn by the employing establishment.
Therefore, appellant has the burden to establish that the withdrawal was due to the accepted
injury, rather than to another cause.18
The Office accepted appellant’s claim for right carpal tunnel syndrome and right carpal
tunnel syndrome release surgery. Appellant returned to light-duty status on April 26, 2006 as a
modified traffic controller. The light-duty position accommodated his physician’s restrictions,
which precluded the use of vibrating or impact tools, the use of his hands on a repetitive basis,
twisting or gripping motions, climbing vertical ladders, squatting, kneeling or reaching overhead.
The job involved monitoring traffic on a pier while industrial work was accomplished nearby.
On March 22, 2007 Dr. Gent provided new permanent restrictions, which limited appellant’s
exposure to cold to “less than 10 percent of his time,” due to “questionable vascular
complications when exposed to cold.” On April 2, 2007 a physician at the employing
establishment health clinic reiterated the permanent restrictions limiting appellant’s exposure to
cold to “less than 10 percent of his time.” On June 15, 2007 the employing establishment
notified appellant of its intent to terminate his employment, due to his inability to perform his
assigned duties for medical reasons. On appeal, appellant’s representative argues that because
appellant was terminated for medical reasons, rather than for fault, his position was improperly
withdrawn and he, therefore, is entitled to compensation benefit. This contention is without
merit.
There is no dispute that appellant was terminated for medical reasons. However, the
evidence reflects that the termination was for reasons unrelated to the accepted conditions,
namely, his inability to withstand exposure to cold temperatures. Shortly after receiving the new
restrictions, the employing establishment informed appellant on June 15, 2007 that the duties of
his position, which included exposure to extreme temperatures, did not comply with the April 2,
2007 permanent restrictions, which limited him to “seldom exposure” to cold. Appellant was
further informed that, given his updated restrictions, his duties as a marine machinery mechanic
could not be restructured to enable him to perform the duties of his permanent position without
undue hardship for the employing establishment, and that the IWP was not able to locate a
vacant, funded position for which he was qualified and able to perform. In its June 26, 2007
final termination letter, the employing establishment reiterated that appellant was being
16

See 20 C.F.R. § 10.5(x).

17

See John I. Echols, supra note 11; John W. Normand, supra note 13. Disability is defined to mean the
incapacity because of an employment injury, to earn the wages the employee was receiving at the time of injury.
It may be partial or total. See 20 C.F.R. § 10.5(f).
18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7.a(1) (May 1997).
(appellant’s burden when a light-duty position is withdrawn is to establish that any increase in disability for work is
due to the accepted injury, rather than another cause).

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terminated due to his inability to perform the duties of his modified position, and the employing
establishment’s inability to accommodate his new restrictions. On May 2, 2008 the employing
establishment indicated that appellant was terminated because the employing establishment
could not accommodate his “restrictions on a nonoccupational condition,” and that the traffic
controller position was still available at the time he was removed. There is no evidence of record
that contradicts the employing establishment’s stated reasons for terminating appellant.
Appellant’s representative argues that a May 28, 2007 report of lower extremity arterial
tests and Dr. Gent’s June 23, 2008 statement reflecting that appellant had no significant
peripheral artery disease was evidence that the employing establishment terminated him for
medical reasons related to his accepted conditions. However, these documents do not provide
evidence necessary to establish such intent. Although Dr. Gent stated that lower extremity
arterial testing revealed no significant peripheral artery disease, he did not modify or eliminate
his previous restriction limiting appellant’s exposure to cold. The Board notes that appellant had
an opportunity to respond to the employing establishment’s June 15, 2007 letter. Appellant
could have provided the employing establishment with a copy of Dr. Gent’s report, together with
updated restrictions. However, as he did not respond to the June 15, 2007 letter within the
prescribed period, there is no evidence that the employing establishment had any information
regarding his vascular condition, other than that contained in the March 22 and April 2, 2007
work reports, which restricted him from working in cold temperatures. Therefore, the employing
establishment’s reliance on Dr. Gent’s April 2, 2007 permanent restrictions was reasonable. The
Board notes that the issue is not whether it properly determined that appellant was unable to
work in cold conditions. The issue is whether the employing establishment withdrew the lightduty position for reasons related to his accepted condition, or for some other reason.
Appellant’s representative argues on appeal that the employing establishment has unclean
hands due to its actions involving the “back-dating” of a previous job offer. He contends that it
was “looking around for a reason to fire [appellant] that was not work related.” However, the
representative’s allegations, without an evidentiary basis, are insufficient to establish that the
termination was due to appellant’s accepted injury, rather than to his documented vascular
condition.19
Appellant’s representative contends that the Office inappropriately relied on the case of
Major W. Jefferson, III,20 where a claimant was terminated by the employing establishment for
improper conduct. He argues that because appellant was terminated for medical reasons, rather
than for fault, his position was improperly withdrawn. Appellant’s representative’s argument is
ill-conceived. Misconduct, which was the basis for claimant’s termination in Jefferson, is merely
an example of an acceptable, unrelated reason for withdrawing a light-duty position. The issue
in this case is whether appellant was terminated for reasons causally related to the accepted

19

Id.

20

47 ECAB 295 (1996).

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injury. The preponderance of the evidence establishes that appellant was terminated for reasons
that were not related to his accepted condition.21
Appellant has failed to establish by the weight of the reliable, probative and substantial
evidence, a change in the nature and extent of the injury-related condition resulting in his
inability to perform the duties of his modified employment, or to provide rationalized opinion
evidence establishing that he was physically disabled as of August 10, 2007. He has also failed
to establish that his light-duty job was withdrawn for reasons related to his accepted condition.
Accordingly, the Board finds that he has not met his burden of proof.
CONCLUSION
The Board finds that appellant has not established entitlement to wage-loss benefits
commencing August 10, 2007.
ORDER
IT IS HEREBY ORDERED THAT the July 21, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21

Appellant’s representative also contends that appellant should have been returned to the “status quo ante” when
the Board reversed the Office’s August 24, 2007 decision, which terminated his compensation benefits for refusal of
suitable employment. However, as the issue raised by the representative is not before the Board, it will not be
addressed in this decision.

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

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Appearances:
National Postal Mail Handlers Union, for the appellant
Office of Solicitor, for the Director

Docket No. 07-2084
Issued: January 23, 2008

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 August 9, 2007 appellant filed a timely appeal from a December 1, 2006 decision of
the Office of Workers’ Compensation Programs denying his request for reconsideration. The
Board’s jurisdiction to consider final decisions of the Office extends only to final decisions
issued within one year prior to the filing of the appeal.1 Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has no jurisdiction to review March 7 and November 25, 2005 merit decisions
denying appellant’s claim for an emotional condition.
ISSUE
The issue is whether the Office abused its discretion in denying appellant’s request for
reconsideration.

1

20 C.F.R. §§ 501.2(c); 501.3(d)(2).

FACTUAL HISTORY
On December 23, 2004 appellant, then a 47-year-old mail handler, filed a claim for an
emotional condition. He alleged that on May 10, 2004 Keith Pomeranski, his supervisor, asked
him to hit Mr. Pomeranski so that he could fire appellant. Mr. Pomeranski told another
employee that appellant had threatened him. Appellant first became aware of his condition on
December 13, 1997 but did not explain what occurred on that date. On January 21, 2005 the
Office asked appellant to submit additional evidence. It noted that a previous claim with a
May 10, 2004 date of injury had been denied.2
In an August 17, 2004 statement, Rudy Rodriguez stated that on May 10, 2004 he
stopped appellant who was driving past, to ask about the flat mail volume. Mr. Pomeranski
approached and told appellant that he would be monitoring his breaks. Appellant responded that
Mr. Pomeranski could watch him. In a July 19, 2004 statement, Bill Rodriguez stated that on
May 10, 2004 appellant told him that he felt threatened and upset regarding Mr. Pomeranski’s
“threat” that he would be watching his work activities closely. Mr. Rodriguez stated that he was
not a witness to any altercation between appellant and Mr. Pomeranski.
In a December 20, 2004 report, Dr. Todd Boffeli, an attending physician, diagnosed an
adjustment disorder and severe recurrent depression. He stated that appellant provided a history
that on May 10, 2004 a supervisor confronted him and told appellant, “Hit me.” Appellant did
not strike the supervisor but became upset and was placed on medical leave.
In decisions dated March 7 and November 25, 2005, the Office denied appellant’s claim
on the grounds that the evidence of record failed to establish that he sustained an emotional
condition in the performance of duty. It noted that the July 19, 2004 statement from
Mr. Rodriguez and appellant’s August 13, 2004 statement had been submitted with the prior
claims regarding the May 10, 2004 incident which had been denied. The Office found that the
witness statements did not establish that Mr. Pomeranski asked appellant to strike him or that he
lied to an employee about being threatened by appellant. The allegation that Mr. Pomeranski
monitored appellant closely was found to be an administrative matter with no error or abuse
established.
On September 14, 2006 appellant requested reconsideration. He reiterated his previous
contentions.
By decision dated December 1, 2006, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted did not warrant further merit review.

2

The record establishes that appellant filed a separate claim for an emotional condition sustained on March 12,
1997 when a coworker attempted to grab a mail container that he was moving. The 1997 claim was accepted for a
single episode of adjustment disorder under Office file number 100465801. Appellant initially filed a claim for the
incident on May 10, 2004 involving Mr. Pomeranski under file number 102033759. This claim was denied. His
second claim for an injury related to the May 10, 2004 incident was assigned file number 102040454. Appellant
indicated in his second claim that it was a recurrence of his accepted 1997 emotional condition.

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LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act3 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation.
The Act states:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on [her] own motion or on application. The Secretary,
in accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Code of Federal Regulations provides that a claimant may obtain review of the
merits of the claim by setting forth arguments that either: (1) shows that the Office erroneously
applied or interpreted a specific point of law; or (2) advances a relevant legal argument not
previously considered by the Office; or (3) constitutes relevant and new pertinent evidence not
previously considered by the Office.4 When an application for review of the merits of a claim
does not meet at least one of these requirements, the Office will deny the application for review
without reviewing the merits of the claim.5
ANALYSIS
In support of his request for reconsideration, appellant merely reiterated his previous
contentions that the incidents on May 10, 2004 involving Mr. Pomeranski caused or aggravated
his emotional condition. These allegations were previously considered by the Office. Therefore,
they do not constitute relevant and pertinent evidence or relevant legal argument not previously
considered by the Office.
The Board finds that appellant did not submit arguments or evidence showing that the
Office erroneously applied or interpreted a specific point of law; advancing a relevant legal
argument not previously considered; or constituting relevant and new pertinent evidence not
considered previously by the Office. Therefore, the Office properly denied his request for
reconsideration.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for reconsideration.

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

20 C.F.R. § 10.608(b).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 1, 2006 is affirmed.
Issued: January 23, 2008
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
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, FLORISSANT MAIN
POST OFFICE, Florissant, MO, Employer
__________________________________________

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

Docket No. 21-1270
Issued: March 21, 2022

Case Submitted on the Record

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

JURISDICTION
On August 18, 2021 appellant filed a timely appeal from a July 15, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish disability from work
for the period May 3 through August 30, 2020, causally related to his accepted December 12, 2019
employment injury.
FACTUAL HISTORY
On December 16, 2019 appellant, then a 62-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 12, 2019 he injured his right shoulder and lower
1

5 U.S.C. § 8101 et seq.

back when he picked up a parcel while in the performance of duty. He stopped work on
December 17, 2019 and returned on December 24, 2019.
By decision dated September 8, 2020, OWCP accepted the condition of right rotator cuff
capsule sprain, initial encounter.
In support of his disability claim, appellant submitted a June 6, 2020 report by
Dr. Jonathan L. Ben-Zev, an orthopedic surgeon, who diagnosed right shoulder pain, unspecified
chronicity, and ordered diagnostic testing.
In a June 8, 2020 right shoulder magnetic resonance imaging (MRI) scan report,
Dr. Stephen B. Huebner, a Board-certified diagnostic radiologist, provided an impression of highgrade supraspinatus tendon tear, including at least two areas of full-thickness tear and mild muscle
atrophy, moderate infraspinatus tendinosis and possible small partial thickness tear and moderate
subscapularis tendinosis, moderate acromioclavicular (AC) osteoarthritis, and minimal
glenohumeral arthritis and small tear of the superior glenoid labrum.
An August 31, 2020 operative report by Dr. Scott G. Kaar, an attending Board-certified
orthopedic surgeon, provided preoperative and postoperative diagnoses of right shoulder rota tor
cuff tear involving the supraspinatus tendons, and AC joint arthritis. Dr. Kaar performed right
shoulder arthroscopic rotator cuff repair, subacromial decompression, and distal clavicle excision.
In progress notes dated September 15 and October 13, 2020, he provided an impression that
appellant was six weeks status post right shoulder arthroscopic rotator cuff repair, subacromial
decompression, and distal clavicle excision. Dr. Kaar noted appellant’s physical restrictions.
Appellant filed a claim for compensation (Form CA-7) for disability from work for the
period May 3, 2020 and continuing.
OWCP, in a November 30, 2020 development letter, informed appellant of the deficiencies
in his claim and requested that he submit medical evidence to support his reported surgery and
disability during the period claimed causally related to the accepted December 12, 2019
employment injury. It afforded him 30 days to respond.
In response, appellant submitted an undated statement in which he described his
December 12, 2019 employment injury and resultant medical treatment. He also submitted
medical evidence.
In progress notes dated June 11, 2020, Dr. Jeffrey C. Faron, a Board-certified internist,
noted appellant’s left shoulder pain. He indicated that there were no contraindications for
appellant’s planned right shoulder surgery.
An additional progress note dated August 11, 2020 and letters dated September 15,
October 16, and December 11, 2020 by Dr. Kaar noted an impression of full-thickness
supraspinatus tear with, mild retraction, mild supraspinatus atrophy and partial thickness tearing
involving the supraspinatus, subscapularis tendinosis, ﬂuid along the biceps, and moderate AC
joint arthrosis. Additionally, he noted that appellant was doing well status post appellant’s
August 31, 2020 arthroscopic right shoulder surgery. In the October 16, 2020 letter, Dr. Kaar

2

advised that appellant was unable to work beginning March 26, 2020 and continuing following his
August 31, 2020 surgery.
OWCP subsequently received additional medical evidence. In letters dated October 13 and
November 24, 2020 and January 5, 2021, Dr. Kaar reiterated that appellant was status post
arthroscopic right shoulder surgery and was “doing well.” In the January 5, 2021 letter, he advised
that appellant would remain off work until his next visit. Dr. Kaar, in a March 5, 2021 letter,
opined that appellant’s full-thickness rotator cuff tear and AC joint arthrosis and resultant
August 31, 2020 surgery were directly related to appellant’s December 2019 employment injury.
In a March 11, 2021 letter, Dr. Karr restated his opinion that appellant’s right rotator cuff
and bicep tear and resultant August 31, 2020 surgical repair was due to his December 12, 2019
employment injury. He advised that appellant could return to full-duty work without restrictions
as of March 9, 2021.
OWCP, by decision dated July 15, 2021, denied appellant’s claim for disability from work
for the period May 3 through August 30, 2020 because the medical evidence of record was
insufficient to establish disability.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.3 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.4 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.5
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.6 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a

2

Supra note 1.

3

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
4

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
5

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

6

Id. at § 10.5(f); see e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

3

medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.7
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.8 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment incident identified
by the employee.9
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period May 3 through August 30, 2020, causally related to his accepted December 12,
2019 employment injury.
In support of his disability claim, appellant submitted progress notes and letters from
Dr. Kaar. Dr. Kaar’s August 11, 2020 progress note provided an impression of full-thickness
supraspinatus tear with, mild retraction, mild supraspinatus atrophy and partial thickness tearing
involving the supraspinatus, subscapularis tendinosis’ ﬂuid along the biceps, and moderate AC
joint arthrosis. He also provided an impression that appellant was doing well status post
arthroscopic right shoulder surgery. However, Dr. Kaar offered no opinion regarding appellant’s
disability status during the period May 3 through August 30, 2020. The Board has held that
medical evidence that does not provide an opinion as to whether a period of disability is due to an
accepted employment condition is insufficient to meet a claimant’s burden of proof. 11 In an
October 16, 2020 letter, Dr. Kaar noted appellant’s inability to work commencing March 26, 2020
and continuing following his authorized August 31, 2020 surgery. While he noted appellant’s
inability to work on the claimed dates, he did not provide any medical reasoning to support his
opinion on disability nor did he attribute appellant’s disability to the accepted December 12, 2019

7

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

8

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

9

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
10

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, supra note 4.
11

See B.M., Docket No. 20-0826 (issued May 10, 2021); Y.D., Docket No. 20-0097 (issued August 25, 2020); M.A.,
Docket No. 19-1119 (issued November 25, 2019); S.I., Docket No. 18-1582 (issued June 20, 2019).

4

employment injury. 12 Dr. Kaar’s remaining letters dated September 15, 2020 through March 5,
2021 do not address appellant’s inability to work on the claimed dates. 13 For these reasons, the
Board finds that his letters and progress note are insufficient to establish appellant’s disability
claim.
Appellant also submitted progress notes by Dr. Faron dated June 11, 2020. The Board
finds that Dr. Faron’s progress notes are of no probative value as they did not address appellant’s
disability status and are therefore insufficient to establish the disability claim. 14
Likewise, Dr. Ben-Zev’s June 6, 2020 report diagnosed right shoulder pain, unspecified
chronicity, but does not offer an opinion regarding appellant’s disability status during the claimed
period.15 For this reason, the Board finds that this evidence from Dr. Ben-Zev is insufficient to
establish appellant’s disability claim.
The record also contains diagnostic reports. However, the Board has long held, however,
that diagnostic studies, standing alone, lack probative value as they do not address whether the
employment injury caused any of the diagnosed conditions or associated disability. 16 For this
reason, the Board finds that the diagnostic reports of record are insufficient to establish appellant’s
disability claim.
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 17 Because appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related total disability during the claimed period due to his
accepted condition, the Board finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.

12

M.A., Docket No. 20-0033 (issued May 11, 2020); F.S., Docket No. 18-0098 (issued August 13, 2018); P.W.,
Docket No. 17-0154 (issued June 9, 2017).
13
M.A., id.; C.S., Docket No. 19-1279 (issued December 30, 2019); L.B., Docket No. 18-0533 (issued August 27,
2018); D.K., Docket No. 17-1549 (issued July 6, 2018); see also William A. Archer, supra note 10 (the Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly addressing the specific
dates of claimed disability).
14
S.S., Docket No. 21-0763 (issued November 12, 2021); M.V., Docket No. 20-0872 (issued January 27, 2020);
P.R., Docket No. 20-0596 (issued October 6, 2020); M.L., Docket No. 18-1058 (issued November 21, 2019); D.J.,
Docket No. 18-0200 (issued August 12, 2019).
15

Supra note 13.

16

See T.W., Docket No. 20-1669 (issued May 6, 2021); J.S., Docket No. 17-1039 (issued October 6, 2017).

17

Supra note 5.

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period May 3 through August 30, 2020, causally related to his accepted December 12,
2019 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 21, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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Appearances:
Sara Kincaid, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0466
Issued: December 17, 2020

Case Submitted on the Record

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

JURISDICTION
On December 20, 2019 appellant, through counsel, filed a timely appeal from an August 1,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated May 25, 2018, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 19, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 25, 2017 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his knees on September 23, 2017 when he jumped onto
the hood of a car to avoid a dog attack while in the performance of duty. He stopped work on
September 25, 2017. OWCP accepted the claim for sprain of ligaments of lumbar spine, contusion
of right knee, contusion of left knee, and aggravation primary osteoarthritis of knees. It paid
appellant wage-loss compensation benefits. On February 16, 2018 he returned to modified-duty
work for six hours per day, with restrictions. Appellant stopped work again on March 28, 2018.
Appellant filed wage-loss compensation claims (Form CA-7) for disability during the
period March 28 through May 11, 2018.
By decision dated May 25, 2018, OWCP denied the wage-loss compensation claims for
the period March 28 through May 11, 2018 as the medical evidence of record did not establish that
appellant’s disability was due to the accepted September 23, 2017 employment injury.4
OWCP subsequently received a May 11, 2018 duty status report (Form CA-17) wherein
Dr. Robert Helsten, a physiatrist, opined that appellant could perform modified duties at work for
eight hours a day.
In a June 11, 2018 report, Dr. Karim A. Meijer, an orthopedic surgeon, noted that appellant
had previously undergone left knee replacement in December 2016. He also noted the history of
injury and that appellant had developed significant swelling in his bilateral lower extremities.
Dr. Meijer reported that x-rays of appellant’s left knee taken that day showed a well-placed total
left knee arthroplasty without evidence of loosening. He provided an impression of “left knee pain
after a total knee arthroplasty.”
Medical reports from Dr. Donald Wayne Hohman, Jr., a Board-certified orthopedic
surgeon, dated June 21, 2018 through May 1, 2019 were also submitted. In his initial report of
June 21, 2018, Dr. Hohman noted that appellant reported that his knee pain had been present for
one year, but had been severe for three months and worsened with weight bearing and prolonged
walking. He provided an assessment of instability of internal left knee prosthesis. He indicated
that if appellant responded favorably to brace management then appellant may be a candidate for
revision arthroplasty. Dr. Hohman continued to submit progress notes, noting that appellant had
an unstable left knee replacement.
On September 6, 2018 Dr. Edward F. Wolski placed appellant off work in preparation for
the planned left knee revision arthroplasty. He indicated that, since appellant’s return to light duty,
appellant had experienced a significant increase in swelling of both knees, and that he could not
4

Appellant continued to file Form CA-7 claims for compensation. OWCP has not, however, issued a final decision
for periods claimed prior to September 6, 2018 and thus that period is not presently before the Board on this appeal.
Appellant was placed on the supplemental rolls on September 6, 2018.

2

tolerate weight bearing for longer than one hour. Dr. Wolski opined that appellant’s period of total
disability began on March 27, 2018. He indicated that appellant had failed conservative treatment
and continued with pain, weakness, limited active range of motion, and knee instability.
Dr. Wolski noted that Dr. Homan felt that appellant was a candidate for arthroplasty revision and
opined that appellant would experience improvement if he underwent the proposed procedure. He
further opined that, following left knee surgery, appellant would require intensive physical
medicine and that appellant would be totally disabled from any work until at least
November 1, 2018. Additional progress reports dated September 20 and October 23, 2018 and
January 29, 2019 were received.5
On February 14, 2019 OWCP resent a copy of the May 25, 2018 formal decision at
appellant’s request.
On June 7, 2019 appellant, through counsel, requested reconsideration.
OWCP subsequently received additional evidence. In a January 29, 2019 report,
Dr. Wolski opined that appellant’s jumping on the hood of a car to avoid a dog and landing on his
knees on September 23, 2017 resulted in a worsening of his lumbar spinal stenosis, lumbar
spondylosis, and bilateral osteoarthritis of the knee and caused a right knee meniscal tear. He also
opined that appellant was unable to return to work since March 27, 2018. Dr. Wolski indicated
that the September 23, 2017 employment injury resulted in gait issues which weakened appellant’s
prior knee replacement. Further, with the meniscus tear, appellant was not physically capable of
walking more than three hours without impeding the recovery to his knees and experiencing severe
pain. Dr. Wolski indicated that, due to the conditions in appellant’s knees, appellant was released
to work with restrictions of walking only three hours. However, after returning to work on
February 5, 2018 in a light-duty position, appellant reported that it took longer than the prescribed
three hours for him to complete his light-duty route based on his walking restrictions. Dr. Wolski
indicated that this caused increased swelling and pain to appellant’s knees and he placed appellant
off work starting March 27, 2019. He indicated that appellant had additional treatment and
appellant was again released to work with restrictions starting April 27, 2018. Dr. Wolski noted
that appellant returned to work on that day, but after working an hour and half, appellant’s
supervisor sent appellant home as there was no work available within those restrictions. He
indicated that appellant was put in a knee brace due to ongoing knee instability and was
recommended for a revision arthroplasty to the left knee. Dr. Wolski opined that appellant had
been disabled from returning to work due to his employment-related conditions commencing
March 27, 2018.
By decision dated August 1, 2019, OWCP denied appellant’s June 7, 2019 reconsideration
request, finding that it was untimely filed and failed to demonstrate clear evidence of error.

5

OWCP received multiple medical reports from Dr. Helsten, dated September 26, 2017 and October 1, 2018, and
onward requesting preauthorization for physical therapy. It also received diagnostic testing, multiple physical therapy
reports dated August 14 and September 10 and 26, 2018, and April 12 and July 8, 2019. On October 1, 2018
Dr. Helsten medically cleared appellant for revision of his left knee replacement. Appellant underwent an arthroplasty
revision total left knee with anterior synovectomy, on October 12, 2018 which Dr. Hohman, performed.

3

LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.7 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS).8 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.9
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request is untimely filed, it must nevertheless undertake a limited review to determine
whether it demonstrates clear evidence of error.10 If a request for reconsideration demonstrates
clear evidence of error, OWCP will reopen the case for merit review.11
To demonstrate 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 OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to prima facie shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the correctness
of OWCP’s decision.12
OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have

6

5 U.S.C. § 8128(a); U.C., Docket No. 19-1753 (issued June 10, 2020); L.W., Docket No. 18-1475 (issued
February 7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).
7

20 C.F.R. § 10.607(a).

8

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

9

T.C., Docket No. 19-1709 (issued June 5, 2020); R.L., Docket No. 18-0496 (issued January 9, 2019); E.R., Docket
No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).
10
See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
11

U.C., supra note 6; M.L., Docket No. 09-0956 (issued April 15, 2010). See also id. at § 10.607(b); supra note 8
at Chapter 2.1602.5 (February 2016).
12

T.W., Docket No. 19-1821 (issued May 15, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).

4

created a conflict in medical opinion requiring further development, is not clear evidence of error.13
The Board makes an independent determination of whether a claimant has demonstrated clear
evidence of error on the part of OWCP.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
OWCP received appellant’s request for reconsideration on June 7, 2019 more than one year
after OWCP’s May 25, 2018 merit decision. As appellant’s June 7, 2019 reconsideration request
was untimely filed, consequently he must demonstrate clear evidence of error on the part of
OWCP.15
The Board further finds that appellant has not demonstrated clear evidence of error in the
May 25, 2018 decision. The underlying issue is whether appellant has established total disability
for the period March 28 through May 11, 2018.
On reconsideration appellant submitted a January 29, 2019 report by Dr. Wolski who
opined that appellant’s September 23, 2017 employment injury resulted in appellant’s period of
disability from work starting March 27, 2019. While Dr. Wolski in this report, and his
September 6, 2018 report was generally supportive of appellant’s claim for disability benefits, as
noted above, the Board has held that, even evidence such as a detailed, well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical
opinion requiring further development, does not demonstrate clear evidence of error.16
Consequently, his reports are insufficient to demonstrate clear evidence of error in the May 25,
2018 merit decision.
None of the other evidence submitted by appellant on reconsideration, including the reports
of Drs. Meijer, Currin, Hohman, and Helsten and the diagnostic testing, raised a substantial
question as to the correctness of OWCP’s denial of appellant’s claim as those physicians did not
provide a medical opinion explaining how appellant’s accepted conditions disabled from his
modified duties during the period in question. Evidence that is not pertinent to the issue on which
the claim was denied is insufficient to demonstrate clear evidence of error.17
The term clear evidence of error is intended to represent a difficult standard. The Board
finds that the evidence and arguments submitted on reconsideration do not demonstrate clear

13
L.N., Docket No. 20-0742 (issued October 26, 2020); J.S., Docket No. 16-1240 (issued December 1, 2016); supra
note 8 at Chapter 2.1602.5(a) (February 2016).
14

U.C., supra note 6; D.S., Docket No. 17-0407 (issued May 24, 2017).

15

20 C.F.R. § 10.607(b).

16

See A.B., Docket No. 19-1539 (issued January 27, 2020); A.A., Docket No. 19-1219 (issued December 10, 2019).

17

S.E., Docket No. 16-1258 (issued December 5, 2016); B.F., Docket No. 11-1181 (issued December 8, 2011);
F.R., Docket No. 09-0575 (issued January 4, 2010).

5

evidence of error on the part of OWCP in its May 25, 2018 merit decision.18 For these reasons,
the Board finds that OWCP properly denied appellant’s request for reconsideration as it was
untimely filed and failed to demonstrate clear evidence of error.
On appeal, appellant, through counsel, contends that the request for reconsideration was
timely filed from the “February 14, 2019 decision.” The Board finds that the February 14, 2019
document was an informational letter and does not constitute a final adverse decision.19 Therefore,
the one-year period to request a timely reconsideration is based upon the May 25, 2018 merit
decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it was
untimely filed and failed to demonstrate clear evidence of error.

18

R.T., Docket No. 20-0298 (issued August 6, 2020); W.R., Docket No. 18-1042 (issued February 12, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 17, 2020
Washington, DC

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

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

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

7


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

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

Docket No. 13-1931
Issued: February 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 19, 2013 appellant, through her attorney, filed a timely appeal of a June 4,
2013 decision of the Office of Workers’ Compensation Programs (OWCP), denying her request
for reconsideration. 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 June 4, 2013 nonmerit
decision. Since more than 180 days elapsed from the most recent merit decisions of
November 13 and August 10, 2012 to the filing of the appeal, the Board lacks jurisdiction to
review the merits of the claim.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was insufficient to warrant merit review under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The June 4, 2013 decision on appeal was issued in response to an application for reconsideration of an
August 10, 2012 OWCP decision. The record contains a November 13, 2012 decision with respect to an
overpayment of compensation based on findings in the August 10, 2012 decision.

FACTUAL HISTORY
On December 5, 1990 appellant, then a 36-year-old router, filed an occupational disease
claim (Form CA-2) alleging an emotional condition as a result of harassment by her supervisor.
She stated that her service-connected disability had been aggravated. On June 3, 1991 OWCP
accepted the claim for major depressive episode and appellant received compensation for wage
loss.
By decision dated March 29, 2011, OWCP stated that the accepted condition was
changed from major depressive disorder to aggravation of major depressive disorder. In a
decision dated May 19, 2011, it terminated compensation for wage-loss and medical benefits.
The termination decision was vacated, by decision dated November 7, 2011, on the grounds that
the medical report from the second opinion physician was based on an incorrect statement of
accepted facts (SOAF).
On November 14, 2011 OWCP advised appellant that a review of her file indicated that
she had been receiving both FECA wage-loss compensation and disability benefits from the
Department of Veterans Affairs (VA). It requested that she submit evidence with respect to her
receipt of VA benefits.
The record contains a rating decision by VA dated April 18, 1994. The decision stated
that “the evaluation of [appellant’s] nervous condition is increased to 100 percent.” According
to the VA, Dr. Celeste Good, a treating physician, reported on December 15, 1993 that appellant
had recurrent depression, suicidal ideation and uncontrollable anger and was unable to work due
to major depression. Appellant was hospitalized in January 1994 for major depression. The VA
reviewed the treatment notes from Dr. Good dated August 2, 1993 to February 26, 1994 and a
March 8, 1994 VA examination and hospital report. The April 18, 1994 decision found that the
conditions were dysthemic disorder and major depression, and the 100 percent disability was
effective December 28, 1993. The record also contains a VA rating decision, dated September 1,
1992, indicating that the service-connected condition was dysthemic disorder with a 50 percent
disability rating.
By letter dated February 21, 2012, OWCP advised appellant that she was in receipt of a
dual benefit that was prohibited by FECA as she received FECA monetary benefits and an
increased VA disability since December 28, 1993. Appellant was advised that she needed to
make an election between OWCP and VA benefits.
In a letter dated March 29, 2012, appellant’s representative contended that appellant had
not received a dual benefit. He argued that the VA decision to increase disability was based only
on a service-connected condition, not a work-related condition. By letter dated April 3, 2012,
OWCP advised appellant that a failure to elect benefits would be considered an election of VA
benefits.
By decision dated May 17, 2012, OWCP terminated appellant’s benefits effective
May 18, 2012. It found that her failure to make the required election of benefits was considered
an election of VA benefits.

2

On June 14, 2012 appellant requested reconsideration. She argued that the VA benefits
were based on dysthemic disorder, not a work-related injury.
By decision dated August 10, 2012, OWCP reviewed the case on its merits and denied
modification of the May 17, 2012 decision.
On May 17, 2013 appellant requested reconsideration. She again argued that there was
no dual benefit received, as the VA award was for dysthemic disorder and her work injury was a
different condition. With respect to the medical evidence, appellant resubmitted a February 4,
2009 report from Dr. Good, who stated that appellant, had been under her care since July 1993
and the treating diagnosis was bipolar disorder and post-traumatic stress disorder (PTSD).
Dr. Good advised that appellant’s condition was chronic and she could not return to work.
Appellant also submitted a February 19, 2013 report from Dr. Good, who stated that
appellant was under her care since July 1993 and was previously diagnosed with major
depression and PTSD. Dr. Good stated that previous treatments with antidepressants had failed
to control her symptoms and on August 26, 1993 her medication was changed. She stated that
the “working diagnosis” was bipolar disorder starting on August 26, 1993. Appellant also
submitted a hospital discharge report dated January 10, 1994 from Dr. Good with a diagnosis of
major depression and recurrent PTSD.
By decision dated June 4, 2013, OWCP found that the application for reconsideration
was insufficient to warrant further merit review of the claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(1) shows that OWCP erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent evidence not previously considered by OWCP.”4 20 C.F.R.
§ 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(2) will be denied by OWCP without review of the
merits of the claim.5
ANALYSIS
Appellant submitted an application for reconsideration on May 17, 2013. She did not
show that OWCP erroneously applied or interpreted a specific point of law or advance a legal
argument not previously considered. Appellant reiterated her argument that she did not believe
3

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”)
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

3

that a dual benefit had occurred, because the VA disability increase was not due to her FECA
work-related injury. This argument was raised prior to the August 10, 2012 merit decision and
therefore it does not represent a legal argument not previously considered by OWCP.
The remaining issue is whether appellant had submitted relevant and pertinent evidence
not previously considered by OWCP. She submitted a February 19, 2013 report and a
January 10, 1994 hospital discharge report from Dr. Good. However, this evidence does not
provide any new and relevant evidence with respect to the underlying merit issue. OWCP found
that the VA decision to increase disability to 100 percent effective December 28, 1993 was due
to the employment injury.6 The accepted condition by OWCP had initially been major
depressive episode, but was later modified to an aggravation of major depressive disorder.
In the February 19, 2013 report, Dr. Good stated that appellant’s medication was changed
on August 26, 1993 and the “working diagnosis” was bipolar disorder. She had previously noted
a diagnosis of bipolar disorder in her February 4, 2009 report. The February 19, 2013 report
does not provide any new and relevant evidence related to the issue of whether the VA disability
increase was due to an employment injury. The April 18, 1994 VA rating decision specifically
noted a December 15, 1993 report from Dr. Good, reporting appellant’s symptoms and stating
that appellant was disabled due to major depression. The February 19, 2013 report from
Dr. Good does not address that report or provide any new information as to the relationship of
the major depression noted by VA and federal employment. With respect to the January 10,
1994 hospital discharge report, the VA rating decision had noted that appellant was hospitalized
for major depression in January 1994. The hospital report listed a diagnosis of major depression
with recurrent PTSD and failed to provide any new and relevant information on the issue
presented.
The Board finds that appellant’s application for reconsideration was not sufficient to
warrant a merit review of the claim. Appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by OWCP or submit relevant and pertinent evidence not previously considered by OWCP.
Pursuant to 20 C.F.R. § 10.608(b), OWCP properly declined to reopen the case for merit review.
CONCLUSION
The Board finds that OWCP properly found the application for reconsideration was
insufficient to warrant merit review of the claim.

6

5 U.S.C. § 8116(a) prohibits an employee from receiving benefits under FECA and VA statutes for the same
injury. This prohibition extends to an increase in a service-connected disability award where the increase is brought
about by an injury sustained in civilian employment. See Kelvin L. Davis, 56 ECAB 404 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 4, 2013 is affirmed.
Issued: February 10, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.O. claiming as widow of A.O., Appellant
and
TENNESSEE VALLEY AUTHORITY,
MAINTENANCE DEPARTMENT,
Chattanooga, TN, Employer
__________________________________________

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

Docket No. 10-2315
Issued: August 1, 2011

Case Submitted on the Record

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

JURISDICTION
On September 15, 2010 appellant filed a timely appeal from the June 7, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
survivor’s benefits. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish entitlement to
survivor’s benefits.
FACTUAL HISTORY
On June 21, 1977 the employee, then a 50-year-old boilermaker foreman, sustained an
injury when he twisted his back while climbing a ladder at work. OWCP accepted his claim for
1

5 U.S.C. §§ 8101-8193.

lumbar strain and herniated lumbar disc at L4-5. The employee received compensation for
periods of disability.2
On June 21, 2005 Dr. Peter Boehm, an attending Board-certified neurosurgeon,
performed a laminectomy and decompression surgery at L4-5. The procedure was authorized by
OWCP. In June and July 2005, the employee underwent hospitalization for five weeks and he
had surgical procedures to correct his bladder difficulties.3
In May 2008, Dr. Boehm indicated that the employee might have suffered an ischemictype stroke in April 2008 and noted that he had to have a gastrostomy tube placed for feeding.
The employee died on November 29, 2008. The death certificate completed on
December 9, 2008 by Dr. Terry Melvin, an attending Board-certified internist, listed the cause of
death as renal failure, thrombocytosis and dementia. On January 26, 2009 appellant, the
employee’s widow, filed a (Form CA-5) claiming survivor’s benefits. In a March 5, 2009 letter,
OWCP advised her that additional evidence was needed to support her claim.
In a January 30, 2006 report, Dr. Boehm stated that appellant felt that the employee’s
abnormal kidney function and bladder difficulties were due to nerve damage that occurred during
the June 21, 2005 lumber surgery. He noted that it was not uncommon for patients to experience
transient voiding difficulties following back surgery, but indicated that it was extremely rare for
these problems to persist for more than a few days and they almost never persisted beyond
several weeks. The operation Dr. Boehm performed on June 21, 2005 was only a decompression
of the dura and that there was almost no manipulation of nerves. While he was certain that the
surgery did contribute to the employee’s voiding difficulties, he did not believe this was the
entire explanation for appellant’s problems. Dr. Boehm noted that the employee did not feel that
the problems he was experiencing were coming from his back; rather the employee mentioned
stomach, chest and groin pain. He identified diabetes mellitus as another possible contributing
factor to the employee’s voiding problems.
The medical records show that on November 25, 2008, the employee was admitted to
Soddy-Daisy Healthcare Center. Upon admittance to the facility, it was noted that his medical
history included various conditions, including anemia, diabetes mellitus, a cerebrovascular
accident, coronary artery disease -- status post myocardial infarction, chronic renal insufficiency,
urinary tract infections, dementia and pneumonia. A death discharge summary completed on
December 3, 2008 by Dr. Tanya Horne, an attending family practitioner, gave the cause of death
as recurrent cerebrovascular accident and aspiration pneumonia.4
The case was referred to Dr. Howard P. Hogshead, a Board-certified orthopedic surgeon
serving as OWCP’s medical adviser, on the issue of whether the employee’s death was causally
related to the accepted work injuries. On May 6, 2009 Dr. Hogshead stated that the employee
2

The employee underwent a lumbar laminectomy at L4-5 in 1987 which was authorized by OWCP.

3

Due to chronic urinary infections, the employee later had a superpubic catheter inserted.

4

Dr. Horne completed a form that listed 22 diagnosed conditions with the date November 24, 2008 written next
to each diagnosis.

2

was admitted to Soddy-Daisy Healthcare Center three days prior to his death. The records
revealed that the causes of death were recurrent cerebrovascular accident and aspiration
pneumonia. Dr. Hogshead concluded that these conditions were not medically related to or
caused by the employee’s spinal stenosis or subsequent surgery.
In a January 21, 2010 decision, OWCP denied appellant’s claim for survivor’s benefits
on the grounds that the medical evidence did not establish a causal relationship between the
employee’s death and the accepted work-related back injuries. It was noted that the causes of the
employee’s death were not accepted as being causally related to his work-related back injuries or
surgeries.
Appellant requested a telephonic hearing before OWCP’s hearing representative. During
the April 21, 2010 hearing, she testified that after the June 21, 2005 surgery the employee did not
urinate on his own and he had a tube placed in his penis that had to be opened and drained every
now and then. Appellant asserted that the employee had a colon problem and multiple urinary
infections after the June 21, 2005 surgery and never recovered from these conditions. Due to the
multiple infections, the employee had a superpubic catheter put in and a home healthcare service
came in once a month to change it. Appellant claimed that he did not have any bladder problems
prior to the June 21, 2005 surgery and asserted that his nerves were cut during the surgery.
Appellant submitted additional evidence after the hearing, including reports and clinic
notes dated between August and October 2006 from Dr. Oliver Benton, III, an attending Boardcertified urologist; reports dated between October and November 1, 2005 from Dr. Boehm;
laboratory tests dated between August 1 and December 2005; a December 20, 2005 cardiac
consult report from Dr. Dennis Hood, an attending Board-certified cardiologist; December 20,
2005 hospital admission and operative reports; and a January 4, 2006 hospital discharge report.
In an August 2, 2005 report, Dr. Benton stated that after his June 21, 2005 surgery the
employee had some lower extremity weakness with numbness and difficulty with bowel control.
Prior to June 21, 2005, the employee had no history of urinary tract infection or voiding
symptoms, although “he did have frequency.” Dr. Benton noted that the employee had diabetes
and hypertension and underwent hernia surgery the previous year and stated that his urinary
retention possibly was neurogenic and that he could well have a lower motor neuron lesion. He
indicated that the lumbar laminectomy was at about the level of the sacral cord and the employee
could have denervation of the bladder. In a September 12, 2005 report, Dr. Benton indicated a
diagnosis of “[i]ncontinence, probably overflow incontinence” and also stated under the
diagnosis section of the report, “[r]etention that I think is most likely on a neurogenic basis. This
began after a spinal stenosis procedure and unfortunately [the employee] is not really voiding
well.”
The December 20, 2005 hospital admission report indicated that the employee was
admitted for transurethral resection of the prostate secondary to urinary retention. The final
diagnosis was given as urinary retention secondary to benign prostatic hypertrophy, diabetes,
hyperthyroidism, hypotension, cardiomyopathy, aortic stenosis, constipation, anemia and
thrombocytopenia. The December 20, 2005 operative report indicated that the employee had a
cystoscopy with transurethral resection of the prostrate and evacuation of a clot. The prostate

3

pathology report found benign nodular prostatic glandular and stromal hyperplasia and the
postoperative diagnosis was urinary retention secondary to benign prostate hyperplasia.
In a December 20, 2005 report, Dr. Hood stated that the employee had a history of
coronary artery disease, heart murmur and likely aortic stenosis and was status post
cerebrovascular accident. He noted that the employee was not very active and developed
substernal chest discomfort at low levels of activity. The January 4, 2006 discharge report
indicated that the employee’s electrocardiogram findings were notable for some bradycardia and
segment changes suggestive of a recent interior lateral myocardial infarction over the past years
versus a significant increase in aortic stenosis. The report noted that chest x-rays showed
atheromatous changes of the aorta and extensive pleural plaque.
In a May 17, 2010 statement, appellant asserted that the additional medical evidence
established that the employee’s death on November 29, 2008 was related to the June 21, 2005
surgery performed by Dr. Boehm. She contended that the employee died from urinary and
kidney problems, that his diabetes was well controlled and that there was no evidence of
cerebrovascular accident, Alzheimer’s disease or neuropathy.
In a June 7, 2010 decision, OWCP’s hearing representative affirmed the January 21, 2010
OWCP decision.
LEGAL PRECEDENT
Appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his employment.5 This
burden includes the necessity of furnishing rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship.6 An award of
compensation may not be based on surmise, conjecture or speculation.7 The mere showing that
an employee was receiving compensation at the time of his death does not establish that his death
was causally related to conditions resulting from the employment.8
ANALYSIS
On June 21, 1977 the employee sustained a work-related lumbar strain and herniated
lumbar disc at L4-5 when he twisted his back while climbing a ladder at work. On June 21, 2005
Dr. Boehm, an attending Board-certified neurosurgeon, performed OWCP’s authorized
laminectomy and decompression surgery at L4-5.

5

Gertrude T. Zakrajsek (Frank S. Zakrajsek), 47 ECAB 770 (1996); Carolyn P. Spiewak (Paul Spiewak), 40
ECAB 552, 560 (1989); Lorraine E. Lambert (Arthur R. Lambert), 33 ECAB 1111, 1120 (1982).
6

Martha A. Whitson (Joe E. Whitson), 43 ECAB 1176, 1180 (1992).

7

Myrl Nix (Earl Nix), 15 ECAB 125, 126 (1963).

8

Leonora A. Buco (Guido Buco), 36 ECAB 588, 594 (1985).

4

The employee died on November 29, 2008 and the death certificate completed on
December 9, 2009 by Dr. Melvin, an attending Board-certified internist, listed the cause of death
as renal failure, thrombocytosis and dementia. A death discharge summary completed on
December 3, 2008 by Dr. Horne, an attending family practitioner, listed the cause of death as
recurrent cerebrovascular accident and aspiration pneumonia. On January 26, 2009 appellant,
the employee’s widow, filed a Form CA-5 claiming survivor’s benefits. On May 6, 2009
Dr. Hogshead, a Board-certified orthopedic surgeon serving as OWCP’s medical adviser,
determined that she had not shown a work-related cause for the employee’s death. OWCP
denied appellant’s claim for survivor’s benefits finding that she did not submit sufficient medical
evidence in support of her claim.
The Board finds that appellant did not submit sufficient medical evidence to meet her
burden of proof to establish entitlement to survivor’s benefits.
The Board notes that, other than the death discharge summary completed on December 3,
2008 by Dr. Horne, the death certificate completed on December 9, 2009 by Dr. Melvin and the
May 6, 2009 report of Dr. Hogshead, the record does not contain any medical evidence produced
after the employee’s November 29, 2008 death which discusses the cause of his death.
Appellant has claimed, both before OWCP and on appeal to the Board, that medical
evidence produced prior to the employee’s death shows that his death was related to employment
factors. She asserted that unspecified nerves were cut during OWCP’s authorized June 21, 2005
laminectomy and decompression surgery performed by Dr. Boehm and that the employee’s
urinary problems resulted from this surgery.9 Appellant further argued that this situation
contributed to the employee’s renal failure that in turn contributed to his death.
Although the medical evidence submitted by appellant suggests that there might have
been some relationship between the employee’s June 21, 2005 surgery and his urinary problems,
the fact that these reports were produced years before the employee’s death on November 29,
2008 means that they are of insufficient probative value regarding the question of whether work-

9

In an August 2, 2005 report, Dr. Benton, an attending Board-certified urologist, stated that prior to the June 21,
2005 surgery the employee had no history of urinary tract infection or voiding symptoms. He indicated that the
lumbar laminectomy was at about the level of the sacral cord and the employee could have denervation of the
bladder. In a September 12, 2005 report, Dr. Benton indicated that a diagnosis of “[i]ncontinence, probably
overflow incontinence” and also stated under the diagnosis section of the report, “[r]etention that I think is most
likely on a neurogenic basis. This began after a spinal stenosis procedure and unfortunately [the employee] is not
really voiding well.” In a January 30, 2006 report, Dr. Boehm stated that the June 21, 2005 surgery contributed to
the employee’s voiding difficulties, but Dr. Boehm noted that the employee’s surgery involved almost no
manipulation of nerves.

5

related conditions contributed to the employee’s death. It is further noted that the reports
submitted by appellant do not provide a clear opinion that the June 21, 2005 surgery contributed
to renal failure or any other condition which might have contributed to the employee’s death.10
Despite being provided an opportunity to submit probative medical evidence, appellant did not
submit any medical reports produced after the employee’s death which discussed the cause of his
death.
Appellant did not submit any medical evidence containing a rationalized medical opinion
that a work-related condition contributed to the employee’s November 29, 2008 death.
Therefore, OWCP properly denied her claim for survivor’s benefits.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish entitlement
to survivor’s benefits.

10

There is medical evidence of record from December 2005 which suggests that the employee’s urinary retention
was related to nonwork-related conditions including benign prostatic hypertrophy, diabetes, hyperthyroidism,
hypotension, cardiomyopathy, aortic stenosis, constipation, anemia and thrombocytopenia. On appeal, appellant
indicated that OWCP’s decisions contain various errors, including those relating to the employee’s date of birth and
his date of death. She did not explain how any factual discrepancy would establish that the employee’s death was
employment related. Appellant asserted that he did not actually have various medical conditions cited in the
medical reports of record, but her opinion on such medical matters would not have probative value.

6

ORDER
IT IS HEREBY ORDERED THAT the June 7, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 1, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
T.T., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Chattanooga, TN, Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1616
Issued: November 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 14, 2014 appellant, through his attorney, filed a timely appeal from a May 21,
2014 merit decision of the Office of Workers’ Compensation Programs’ (OWCP) hearing
representative. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained right ear hearing loss causally related to factors
of his employment.
FACTUAL HISTORY
On April 16, 2013 appellant, then a 53-year-old boilermaker, filed an occupational
disease claim alleging that he sustained hearing loss as a result of his employment. He first
became aware of his condition on January 1, 2003 and realized that it resulted from his
1

5 U.S.C. § 8101 et seq.

employment on April 4, 2013. Appellant stated that he was first notified of work-related hearing
loss by letter on April 4, 2013 when he reviewed the report of Dr. William Logan, a Boardcertified otolaryngologist. The employing establishment noted that appellant first reported the
condition to his supervisor on May 21, 2013 and was last exposed to the conditions alleged to
have caused his condition on January 30, 1989.
By letter dated May 19, 2013, OWCP advised appellant that insufficient evidence was
received to establish his claim and requested additional evidence to demonstrate that he sustained
hearing loss as a result of factors of his employment. In a separate letter of the same date, it also
requested that the employing establishment address the sources of appellant’s noise exposure,
decibel and frequency level, period of exposure and whether hearing protection was provided.
In an undated statement, appellant provided several dates when he worked as a
boilermaker for various plants in the employing establishment.2 He noted that he was exposed to
loud noises on a daily basis produced by grinding, hammering on metal, equipment noise,
compressors, air tools, turbines, large fans, large pumps and conveyor belts. Appellant worked
five days per week, eight hours per day and wore earplugs in the later years. He also reported
that in 1977 he worked for a car dealer and had no noise exposure at work. In 1978 appellant
worked for a private construction company and was exposed to noise from hammering nails. In
1979 he worked four months for a private company as an assembly line worker with no noise
exposure.
In a March 19, 2013 report, Dr. Logan opined that appellant’s complaints of hearing loss
were work related and noted that he worked around loud noise for a number of years as a
boilermaker. He reviewed appellant’s history and conducted an examination. Dr. Logan
observed shortness of air, arthritis, back pain and muscle weakness. Examination of the ears
demonstrated no deformity or discharge. Dr. Logan reported that an audiogram revealed mild
sensorineural hearing loss on the right at 500 hertz and moderate hearing loss at 3,000 to 4,000
hertz rising back to mild at 6,000 hertz and a mild sensorineural hearing loss at 4,000 and 8,000
hertz on the left. Tympanograms demonstrated slight negative pressure and discrimination
scores were 100 percent bilaterally. Dr. Logan diagnosed sensorineural hearing loss. He advised
appellant that no medicine or surgery was likely to improve his hearing and recommended that
he avoid unnecessary exposure to loud noise and use ear protection when around loud noise.
In a July 30, 2013 letter, appellant’s counsel, stated that appellant noticed some hearing
loss in 2003 but he did not learn that his hearing loss was work related until April 4, 2013 when
he reviewed the report of Dr. Logan. He noted that appellant’s CA-35B reflected that he had no
previous hearing problems prior to his employment.

2

From March 12, 1979 to June 12, 1981 appellant worked at the Hartsville nuclear plant. From December 30,
1981 to March 19, 1982; April 2 to June 8, 1984; April 24 to May 23, 1986; and October 21 to November 23, 1987
he worked at the Widows Creek plant. From August 4 to December 17, 1982; July 15 to 31, 1983; January 4 to
April 3, 1984; April 12 to 30, 1985; and August 30, 1985 to January 24, 1986 appellant worked at the Sequoyah
plant. From 1979 to October 2007, he worked out of the Boilermakers Union. From 2007 to November 2010,
appellant worked at various power plants.

2

In an August 28, 2013 report, Whitney R. Mauldin, an audiologist, related that the
employing establishment requested her to review and provide an opinion regarding appellant’s
claim for work-related hearing loss. She reviewed appellant’s history and noted that he worked
at numerous power plants and other contracting companies for the past 24 years where he was
exposed to excessive noise during the last 24 years that was not related to his federal
employment. The audiologist reported that appellant’s first hearing examination in 1978
revealed mild loss of 6,000 hertz at his left ear and normal hearing at his right ear. She stated
that there were no significant changes on other examinations during any of appellant’s
intermittent employment. The audiologist also pointed out that appellant did not file a claim for
compensation until 24 years after his employment and 10 years after he noted that he became
aware of his hearing loss in 2003. The employing establishment submitted appellant’s
audiological evaluations dated from February 16, 1978 to September 26, 1987.
OWCP referred appellant, together with a statement of accepted facts and the medical
record, to Dr. Jack W. Aland, a Board-certified otolaryngologist, for a second opinion
examination and an audiological evaluation. In an August 26, 2013 report, Dr. Aland reviewed
the statement of accepted facts and noted that no previous audiograms were available for review.
Upon examination, he observed clear canals and intact drums. Both drums had normal mobility.
Dr. Aland provided the results of basic fork tests. He diagnosed neurosensory hearing loss.
Dr. Aland noted “yes” that appellant’s workplace exposure was sufficient as to intensity and
duration to have caused his hearing loss, but noted that appellant’s work was not all during his
federal employment. He also indicated that appellant’s hearing loss was not due to noise
exposure during appellant’s federal employment. Dr. Aland explained that because hearing loss
was only in the right ear he doubted that it was from workplace exposure. An audiogram
performed that day with testing at the frequency levels of 500, 1,000, 2,000, and 3,000 hertz
revealed decibel losses of the right ear as 15, 20, 30 and 50 respectively. Testing at the same
frequency levels revealed decibel losses of 20, 15, 30, and 30 of the left ear.
In a decision dated September 20, 2013, OWCP denied appellant’s claim due to
insufficient medical evidence. It accepted that he was exposed to noise during his federal
employment and was diagnosed with right sensorineural hearing loss but found that the medical
evidence failed to establish that his hearing loss was causally related to the established workrelated noise exposure.
In a letter dated September 26, 2013 and received by OWCP on October 21, 2013,
appellant’s attorney requested a telephone hearing, which was held on March 14, 2014.
Appellant’s counsel described his work as a boilermaker in the various plants and his exposure to
loud noise during his federal employment. He contended that appellant established that he was
exposed to loud noise on a daily basis while working at the employing establishment. Counsel
noted that, although the second opinion examiner reported that appellant’s hearing loss was not
due to his federal employment, he acknowledged that appellant’s workplace exposure was
sufficient as to intensity and duration to have caused the loss in question. He pointed out this
discrepancy and contended that OWCP could not rely on this report. On the other hand, counsel
alleged that OWCP should base its decision on the report of Dr. Logan.
By decision dated May 21, 2014, an OWCP hearing representative affirmed the
September 20, 2013 decision denying appellant’s hearing loss claim.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7 Neither the fact that appellant’s condition became apparent during a
period of employment nor, his belief that the condition was caused by his employment is
sufficient to establish causal relationship.8
ANALYSIS
Appellant alleged that he sustained hearing loss as a result of factors of his employment.
OWCP accepted that he was exposed to noise while working as a boilermaker at the employing
establishment and that he sustained right sensorineural hearing loss. It denied appellant’s claim
finding insufficient medical evidence to establish that his hearing loss was causally related to his
federal employment.
The Board finds that this case is not in posture for decision and must be remanded for
further development.
OWCP denied appellant’s claim based on the August 26, 2013 report of Dr. Aland, an
OWCP referral physician, who found that appellant’s right sensorineural hearing loss was not
caused by employment-related noise exposure. The Board finds, however, that Dr. Aland failed
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

8

Kathryn Haggerty, 45 ECAB 383 (1994).

4

to provide a fully-rationalized medical opinion based on an accurate background that explained
his conclusion. Dr. Aland did not review a complete and accurate account of appellant’s
occupational background. He noted that appellant’s prior audiograms were not available for
review. The Board has held that medical opinions based on an incomplete or inaccurate history
are of limited probative value.9 Dr. Aland also failed to provide a clear explanation of why
appellant’s federal work-related noise exposure did not cause or contribute to appellant’s hearing
loss. He indicated that appellant’s workplace exposure was sufficient as to intensity and duration
to have caused his hearing loss but also stated that he doubted that it was from workplace
exposure. Although appellant’s last day of exposure to federal noise exposure was in 1989,
Dr. Aland fails to adequately explain how appellant’s exposure to noise at the employing
establishment did not cause or contribute in any way to his hearing loss.10 Accordingly, the
Board finds that Dr. Aland’s medical opinion is not sufficiently rationalized to provide a
sufficient basis for denying appellant’s claim.
It is well established that proceedings under FECA are not adversarial in nature, and
while the employee has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.11 Once OWCP undertook development of the
evidence by referring appellant to a second opinion physician, it has a duty to secure an
appropriate report addressing all relevant issues.12 As Dr. Aland failed to provide a rationalized
medical opinion based on accurate history to support his findings, the case will be remanded to
OWCP for further development of the medical evidence. After such further development as
OWCP deems necessary, a de novo decision should be issued regarding the issue of whether
appellant sustained a hearing loss causally related to factors of his employment.
On remand, OWCP should prepare a statement of accepted facts that includes appellant’s
exposure to noise at the employing establishment and the length and period of such exposures
and refer the entire case record to Dr. Aland to obtain a rationalized opinion regarding whether
appellant’s hearing loss was causally related to factors of his employment, including whether his
exposure to noise contributed in any way to his acknowledged hearing loss.
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant
met his burden of proof to establish that he has an employment-related hearing loss.

9

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

10

See S.T., Docket No. 13-215 (issued April 1, 2013).

11

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

12

Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the May 21, 2014 decision of the Office of
Workers’ Compensation Programs is vacated and the case remanded for further action consistent
with this decision of the Board.
Issued: November 20, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6