United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Fort Worth, TX,
Employer
__________________________________________

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

Docket No. 15-1471
Issued: December 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 29, 2015 appellant filed a timely appeal of a June 2, 2015 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)(1) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a consequential
left knee injury as a result of his accepted right knee conditions.
FACTUAL HISTORY
On February 24, 2010 appellant, then a 39-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that he sustained right shoulder and right knee pain in the
1

5 U.S.C. § 8101 et seq.

performance of duty on that date. He described that while escorting two inmates on February 24,
2010 one of the inmates attempted to block appellant’s path so that another inmate could dispose
of contraband. Appellant had to use immediate force, place the inmate on the ground, and use
restraints. OWCP accepted his claim for condition of the right shoulder, internal derangement of
the right knee, and prepatellar bursitis on the right on March 31, 2010.
Appellant underwent right shoulder arthroscopic debridement of the glenoid with repair
of superior labrum anterior to posterior (SLAP) lesion, arthroscopic bursectomy, acromioplasty,
and mumford procedure on June 3, 2010. On December 9, 2010 he underwent arthroscopic
adhesiolysis and debridement of partial thickness rotator cuff tear and glenoid lesion,
acromioplasty, and intra-articular adhesiolysis. Appellant underwent a right arthroscopy with
abrasion arthroplasty of the medial patellar facet and complete synovectomy on April 14, 2011.
On July 25, 2011 he underwent patellofemoral arthrosis of the right knee. OWCP authorized the
surgeries.
By decision dated April 9, 2012, OWCP accepted the additional condition of right radial
styloid tenosynovitis as due to appellant’s employment injury.
On May 10, 2012 appellant underwent excision of a cyst and de Quervain’s release in the
right wrist. Appellant’s attending physician, Dr. Joseph Daniels, an osteopath, performed a right
knee arthroscopy with complete synovectomy and intra-articular lysis of adhesions on
June 21, 2012. Appellant underwent additional right arm surgery on October 24, 2013 due to
biceps tenodeses with lysis of adhesions. These surgeries were also authorized by OWCP.
Appellant continued to report right shoulder pain on February 3, April 2, and 16, 2014.
Dr. Daniels examined appellant due to right knee pain on May 22, 2014. On August 20, 2014 he
described appellant’s continuing right knee pain.
Dr. Daniels examined appellant on
September 5, 2014 due to right knee pain and giving way. He reported that appellant had
developed a blood clot on May 8, 2014 in his right leg. In a report dated September 30, 2014,
Dr. Daniels treated him due to low back and right lower extremity pain with paresthesias.
Appellant telephoned OWCP on January 23, 2015 regarding expanding his claim to
include a left knee condition. He asked if OWCP had received a report from Dr. Daniels on
April 2, 2015.
In a report dated March 24, 2015, Dr. Daniels described appellant’s treatment for right
knee pain. He noted that appellant underwent right knee surgeries on April 14, and July 25, 2011
as well as June 21, 2012. Dr. Daniels indicated that appellant utilized a walking cane and
experienced moderate daily symptoms which limited activities. He also described tenderness
and joint effusion in the left lower extremity. Dr. Daniels found that appellant’s left knee
demonstrated “a lot of patellofemoral pain which could be due to overcompensation from
chronic right knee pain and internal derangement.” He recommended a one-time evaluation to
rule out acute or chronic issues.
On April 28, 2015 appellant telephoned OWCP and requested that his claim be expanded
to include his left knee condition.

2

In a report dated May 26, 2015, an OWCP medical adviser reviewed the statement of
accepted facts and noted the accepted conditions of right knee internal derangement, prepatellar
bursitis, loose body, and traumatic arthropathy. He noted that the question was whether
appellant had developed left knee pain or another left knee condition as a consequence from
overuse as a result of the accepted right knee disorders. The medical adviser reviewed
Dr. Daniels’ March 24, 2015 report which, in his words, suggested that the left knee
patellofemoral joint pain could be due to overcompensation from the chronic right knee pain and
internal derangement. He pointed out that based on review of the literature2 there was no clear
evidence that an injury to one lower extremity would have any significant impact on the opposite
uninjured limb, unless the injury resulted in partial or complete paralysis of the damaged leg or a
shortening of the injured lower extremity resulting in limb length discrepancy of more than four
centimeters. The medical adviser concluded that appellant’s left knee disorder was not a
consequence of the February 14, 2010 employment injuries.
By decision dated June 2, 2015, OWCP denied appellant’s claim for a consequential
injury to his left knee. It found that the medical adviser’s determination that there was no
evidence that appellant’s right knee condition was of the type to impact his left knee was entitled
to the weight of the medical evidence.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional
misconduct.3 Once the work-connected character of any injury has been established, the
subsequent progression of that condition remains compensable so long as the worsening is not
shown to have been produced by an independent nonindustrial cause and so long as it is clear
that the real operative factor is the progression of the compensable injury, associated with an
exertion that in itself would not be unreasonable under the circumstances.4
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he must present rationalized medical opinion evidence, based on a complete
factual and medical background, showing causal relationship. Rationalized medical evidence is
evidence which relates a work incident or factors of employment to a claimant’s condition, with
stated reasons of a physician. The opinion must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship of the diagnosed
condition and the specific employment factors or employment injury.5
2

Specifically, Dr. Daniels referred to the American Medical Association (A.M.A.) Guides Newsletter, the
May/June 2012 edition. See The Guides Newsletter, May/June 2012.
3

Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson & Lex K. Larson, The Law of Workers’
Compensation, 10-1 (2006).
4

Clement Jay After Buffalo, 45 ECAB 707, 715 (1994).

5

Charles W. Downey, 54 ECAB 421 (2003).

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ANALYSIS
The only medical evidence supporting a causal relationship between appellant’s accepted
right knee conditions and his alleged consequential left knee condition is the March 24, 2015
report from Dr. Daniels. In this report Dr. Daniels described appellant’s history of injury as well
as his medical treatments for his right knee. He reported that appellant walked with a cane and
that he experienced moderate daily symptoms which limited his activities. Dr. Daniels found
tenderness and joint effusion in the left lower extremity. He concluded that appellant’s left knee
pain “could be due to overcompensation from chronic right knee pain and internal derangement.”
Dr. Daniels recommended a one-time evaluation to rule out acute or chronic issues.
The Board finds that Dr. Daniels’ report is not sufficiently detailed and reasoned to meet
appellant’s burden of proof. Dr. Daniels’ report is couched in speculative terms noting only that
appellant’s left knee pain “could” be the result of overcompensation due to his right knee
conditions. Medical opinions that are speculative or equivocal in character are of diminished
probative value.6 Without a clear diagnosis of appellant’s left knee condition, a history which
includes the previous left knee injuries and a definitive opinion that this condition was caused or
aggravated by appellant’s employment, this report is insufficient to meet appellant’s burden of
proof or to create a conflict with the opinion of OWCP’s medical adviser.
OWCP’s medical adviser based his May 26, 2015 report on a review of the statement of
accepted facts and Dr. Daniels’ March 24, 2015 report. He also reviewed medical literature and
concluded, based on this review, that unless the employment-related injury resulted in partial or
complete paralysis of the damaged leg or a shortening of the injured lower extremity resulting in
limb length discrepancy of more than four centimeters, then there should not be a resulting
significant impact on the opposite uninjured limb. This report does not support appellant’s claim
for a consequential injury and it is detailed and well reasoned.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
developed a left knee consequential injury as a result of his accepted right knee conditions.

6

E.K., Docket No. 15-1381 (issued September 18, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the June 2, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 16, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 14-302
Issued: June 6, 2014

Case Submitted on the Record

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

JURISDICTION
On November 25, 2013 appellant, through his representative, filed a timely appeal from a
November 13, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury on February 11, 2013 while in the performance of duty.
On appeal, appellant’s representative contends that the evidence of record establishes that
appellant’s conditions were aggravated by receiving information from the employing
establishment regarding asbestos and lead contamination in the building where he was to work.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 12, 2013 appellant, a 57-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on February 11, 2013 he sustained depression, anxiety, chest pain and
a panic attack as a result of being informed by the employing establishment that there was
asbestos and lead contamination in the building where he was to work. He submitted
documentation in support of his claim, including maps of locations of lead and asbestos in his
future work building.
On February 11, 2013 Dr. John D. Ramirez, a cardiologist, noted that appellant presented
with complaints of chest wall tingling while at work, a feeling of flushing about the head, very
anxious and apparently suffering from panic attacks. Appellant described “his feelings
associated with his stress he [was] undergoing in the workplace as well as retirement
proceedings.” Dr. Ramirez diagnosed dyspnea, chest tingling, anxiety neurosis, panic attacks,
status post anterolateral wall myocardial infarction, status post bare-metal stent, status post
ventricular fibrillation and hyperlipidemia. He advised that appellant’s anxiety and panic attacks
would directly affect his ischemic heart disease and placed him at high risk of increased
cardiovascular events such as myocardial infarction.
In a February 21, 2013 letter, OWCP notified appellant of the deficiencies of his claim.
It afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a February 25, 2013 letter from his representative and additional
documentation regarding the lead and asbestos in his future work site.
By decision dated March 25, 2013, OWCP denied appellant’s claim. It found that the
evidence submitted was not sufficient to establish that he was injured in the performance of duty.
On April 1, 2013 appellant, through his representative, requested an oral hearing before
an OWCP hearing representative. He submitted a July 30, 2013 treatment report from
Dr. Ramirez, who indicated that appellant presented with increased stress and anxiety concerning
employment issues and retiring. Dr. Ramirez diagnosed ischemic heart disease and noted that
appellant’s anxiety related to his employment as the fact that he would be working in a building
contaminated with lead and asbestos had triggered episodes of chest wall tingling, a flushing
feeling about the head, shortness of breath, anxiety, panic attacks and insomnia. Dr. Ramirez
stated that the medical literature demonstrated that increased mental stress such as anxiety and
panic attacks would exacerbate underlying cardiovascular disease and would be a direct cause of
appellant’s worsening of his already diagnosed cardiovascular disease.
A telephonic hearing was held before an OWCP hearing representative on
August 5, 2013. Appellant noted that he had not worked since February 11, 2013 and had retired
on an OPM disability. He submitted a September 4, 2013 letter from his representative and
additional documentation regarding lead and asbestos.
The employing establishment responded on August 30, 2013 that appellant was released
to return to work under claim No. xxxxxx753 as of February 11, 2013. Further, there was no
actual hazard present at the work site to which appellant was assigned nor did he begin work.

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By decision dated November 13, 2013, OWCP’s hearing representative affirmed the
March 25, 2013 decision.
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relation. Instead, Congress
provided for the payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.2 The phrase while in the
performance of duty has been interpreted by the Board to be the equivalent of the commonly
found prerequisite in workers’ compensation law of arising out of and in the course of
employment.
In Lillian Cutler,3 the Board noted that workers’ compensation law is not applicable to
each and every injury or illness that is somehow related to an employee’s employment. There
are situations when an injury or illness has some connection with the employment but
nonetheless does not come within the coverage of workers’ compensation as they are found not
to have arisen out of the employment. When an employee experiences emotional stress in
carrying out her employment duties, or has fear and anxiety regarding her ability to carry out her
duties, and the medical evidence establishes that the disability resulted from her emotional
reaction to such situation, the disability is generally regarded as due to an injury arising out of
and in the course of employment. This is true when the employee’s disability resulted from her
emotional reaction to her day-to-day duties. The same result is reached when the emotional
disability resulted from the employee’s emotional reaction to a special assignment or
requirement imposed by the employing establishment or by the nature of the work.4
In contrast, a disabling condition resulting from an employee’s feelings of job insecurity
per se is not sufficient to constitute a personal injury sustained in the performance of duty within
the meaning of FECA. Thus, disability is not covered when it results from an employee’s fear of
a reduction-in-force, unhappiness with doing inside work, desire for a different job, brooding
over the failure to be given work she desires, or the employee’s frustration in not being permitted
to work in a particular environment or to hold a particular position.5 Board case precedent
demonstrates that the only requirements of employment which will bring a claim within the
scope of coverage under FECA are those that relate to the duties the employee is hired to
perform.6

2

See 5 U.S.C. § 8102(a).

3

28 ECAB 125 (1976).

4

Id. at 130.

5

See supra note 3.

6

See Anthony A. Zarcone, 44 ECAB 751 (1993).

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In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
compensable factors of employment and may not be considered.7 If a claimant does implicate a
factor of employment, OWCP should then consider whether the evidence of record substantiates
that factor. As a rule, allegations alone by a claimant are insufficient to establish a factual basis
for an emotional condition claim; the claim must be supported by probative evidence.8 Where
the matter asserted is a compensable factor of employment and the evidence of record
established the truth of the matter asserted, OWCP must base its decision on an analysis of the
medical evidence.9
ANALYSIS
In the present case, appellant has not attributed his emotional condition to his regular
duties as a letter carrier or his scheduled tour of duty. His allegations do not relate to such
potential compensable factors as overwork or any claim of his inability to perform the duties
required in his position under Cutler.10 Rather, appellant attributed his emotional reaction to
actions taken by the employing establishment on February 11, 2013, including being informed
during plant safety training that there was a potential asbestos and lead contamination in the
building where he was to work. The employing establishment advised that there was no actual
hazard at the work site nor did appellant ever begin his job at the site.
The Board finds that appellant’s allegations pertaining to February 11, 2013 relate to
administrative and personnel matters of the employing establishment involving the dissemination
of safety information concerning safety training and of potential lead and asbestos contamination
at his future work site. Generally, an employee’s emotional reaction to administrative or
personnel matters is not covered under FECA. However, when the evidence of record
demonstrates that the employing establishment erred or acted unreasonably in a personnel

7

See Dennis J. Balogh, 52 ECAB 232 (2001).

8

See Charles E. McAndrews, 55 ECAB 711 (2004).

9

See Jeral R. Gray, 57 ECAB 611 (2006).

10

See Reco Roncaglione, 52 ECAB 454 (2001) (disagreement with the associate warden held not compensable,
whether viewed as a disagreement with supervisory instructions or as perceived poor management); Robert Knoke,
51 ECAB 319 (2000) (where the employee attributed his emotional injury to the manner in which his supervisor
spoke to him about undelivered mail, the Board found that a reaction to the instruction itself was not compensable,
as work assignments given by supervisors in the exercise of supervisory discretion are actions taken in an
administrative capacity and, as such, are outside the coverage of FECA); Frank A. Catapano, 46 ECAB 297 (1994)
(supervisory instructions, with which the employee disagreed, held not compensable in the absence of evidence of
managerial error or abuse); Rudy Madril , 45 ECAB 602 (1994) (where the employee questioned his supervisor’s
instructions to move from belt number five to belt number six and unload mail, and became upset because he felt he
was being pushed and picked on, the Board found that the incident was not a compensable factor of employment).

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matter, coverage may be afforded.11 The Board finds that the evidence of record does not
establish that the employing establishment acted unreasonably or erred by informing him with
regard to the condition of his future workplace. The Board noted that the safety training was in
compliance with OSHA requirements and that there was no actual hazard at the work site.12
Therefore, appellant’s allegations do not constitute compensable factors of employment.
The evidence of record does not establish appellant’s allegations that the February 11,
2013 incident to which he attributes his conditions arose from the performance of his regular or
specially assigned work duties. Rather his emotional reaction to the personnel and
administrative matters can be described as self-generated and not arising in the performance of
duty but due to his personal frustration in not being permitted to work in a particular work
environment. Thus, he has not met his burden of proof to establish a claim.13
On appeal, appellant’s representative contends that the evidence of record establishes that
appellant’s conditions were aggravated by receiving information from the employing
establishment regarding asbestos and lead contamination in the building where he was to work.
For the reasons stated above, the Board finds the representative’s arguments are not
substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP, pursuant to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury on February 11, 2013 while in the performance of duty.

11

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Norman A. Harris, 42
ECAB 923 (1991).
12

See Kathi A. Scarnato, 43 ECAB 220 (1991) (the Board noted that the employing establishment retains the
right to preserve an environment in which the performance of work is an essential goal). See also Anthony A.
Zarcone, supra note 6; Drew A. Weissmuller, 43 ECAB 745 (1992).
13

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record. Marlon Vera, 54 ECAB 834 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the November 13, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 6, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Norfolk, VA, Employer
__________________________________________

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

Docket No. 10-169
Issued: August 3, 2010

Case Submitted on the Record

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

JURISDICTION
On October 19, 2009 appellant timely appealed an August 5, 2009 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than an eight percent impairment of the right
upper extremity.
FACTUAL HISTORY
On November 7, 2003 appellant, a 49-year-old tractor-trailer operator, sustained an injury
to his right shoulder while closing the cargo door of a trailer. The Office accepted his claim for
retear injury of the right rotator cuff. On October 22, 2007 appellant filed a claim for a schedule
award.
In an October 19, 2007 report, appellant’s treating physician, Dr. Mark A. Bewley, a
Board-certified orthopedic surgeon, diagnosed right shoulder impingement. Examination

revealed pain and weakness in the right shoulder, positive scapular dyskinesia and reduced right
shoulder abduction strength. With moderately increased thoracic kyphosis, appellant’s right
shoulder blade rested more than five centimeters (cm) away from his spine. Without arm
motion, the right scapula was abducted and downwardly rotated more than the left, with his
inferior angle winging off the rib cage. Range of motion measurements were as follows: flexion
-- 144 degrees; extension -- 67 degrees; abduction -- 98 degrees; adduction -- 24 degrees; lateral
rotation -- 74 degrees; and extension rotation -- 97 degrees. Dr. Bewley advised that appellant
had a 16 percent permanent impairment of his right upper extremity (RUE) and that the date of
maximum medical improvement (MMI) was October 19, 2007.
The Office asked a district medical adviser to review the record for a determination as to
the degree of appellant’s RUE impairment. On July 8, 2009 the medical adviser noted that the
only impairment rating of record was the October 19, 2007 report from Dr. Bewley, who opined
that appellant had a 16 percent permanent impairment of his right arm. He recommended that a
second opinion examination be obtained.
The record contains a form report from Dr. Bewley dated July 17, 2009. Dr. Bewley
made a diagnosis-based impairment rating of 16 percent pursuant to the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). Referring to Table 15-5 on page 403, he determined that appellant had a Class 2
impairment of his (RUE) based on a diagnosis of rotator cuff tear. Dr. Bewley identified Grade
A as the appropriate grade, using (-2) as a grade modifier for clinical studies (GMCS) pursuant
to page 411 of the A.M.A., Guides, for a final combined impairment of 16 percent.
The Office again asked the medical adviser to review the record. On July 3, 2009 the
medical adviser referenced appellant’s July 31, 2003 and July 2004 arthroscopic right shoulder
decompression surgeries and concluded that Dr. Bewley’s 16 percent impairment rating was
incorrect. He stated that “range of motion can be used as the most accurate and fairest
impairment in the stand-alone approach for total impairment [of the] RUE.” Referencing Table
15-24 at page 475 of the sixth edition of the A.M.A., Guides, the medical adviser found that
appellant had an eight percent permanent impairment of his right arm, based upon Dr. Bewley’s
range of motion measurements.1 He opined that the date of MMI was October 19, 2007, the date
Dr. Bewley examined appellant.
By decision dated August 5, 2009, the Office granted appellant a schedule award for an
eight percent impairment of the right arm. The award covered a period of 24.96 weeks from
October 19, 2007 through April 10, 2008. The Office found that the weight of medical opinion
was represented by the Office medical adviser, who had properly applied the A.M.A., Guides.2

1

The medical adviser referenced the following range of motion measurements: flexion -- 144 degrees; extension
-- 67 degrees; abduction -- 98 degrees; adduction -- 24 degrees; lateral rotation -- 74 degrees; and extension rotation
-- 97 degrees.
2

The Board notes that appellant submitted additional evidence after the Office issued its August 5, 2009 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20
C.F.R. § 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

2

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.3 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.4 Effective May 1, 2009,
schedule awards are determined in accordance with the A.M.A., Guides (6th ed. 2008).5
ANALYSIS
The Board finds that this case is not in posture for decision as to the extent of appellant’s
right arm impairment. Therefore, it will be remanded to the Office for further development.
Under the sixth edition of the A.M.A., Guides, impairments of the upper extremities are
covered by Chapter 15. Diagnosis-based impairment is the primary method of evaluation for the
upper limb.6 Range of motion is used primarily as a physical examination adjustment factor and
only to determine actual impairment values when a grid permits its use as an option.7 When the
A.M.A., Guides provides more than one method to rate a particular impairment or condition, the
method producing the higher rating should be used.8 In this case, the medical adviser made a
range of motion evaluation, which resulted in an 8 percent impairment rating, rather than the
diagnosis-based rating used by appellant’s treating physician, which resulted in a 16 percent
rating. He did not, however, explain why he used the range of motion analysis, rather than the
diagnosis-based analysis found under the sixth edition of the A.M.A., Guides.
On October 19, 2007 Dr. Bewley noted that appellant had pain and weakness in the right
shoulder, positive scapular dyskinesia and reduced right shoulder abduction strength. With
moderately increased thoracic kyphosis, appellant’s right shoulder blade rested more than five
cm away from his spine. Without arm motion, the right scapula was abducted and downwardly
rotated more than the left, with his inferior angle winging off the rib cage. Range of motion
measurements were as follows: flexion -- 144 degrees; extension -- 67 degrees; abduction -- 98
degrees; adduction -- 24 degrees; lateral rotation -- 74 degrees; and extension rotation -- 97
degrees. Dr. Bewley rated 16 percent permanent impairment of the right arm and that maximum
3

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1) (2006).
4

5 U.S.C.

20 C.F.R. § 10.404 (2009).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1
(January 2010).
6

A.M.A., Guides 432, section 15.2.

7

Id.

8

Id. at 20, Table 2-1.

3

medical improvement had been reached. On July 17, 2009 Dr. Bewley provided a diagnosisbased impairment rating of 16 percent under the sixth edition of the A.M.A., Guides. Referring
to Table 15-5 on page 403, he determined that appellant had a Class 2 impairment of his RUE
based on a diagnosis of rotator cuff tear. He identified Grade A as the appropriate grade, using
(-2) as a GMCS pursuant to page 411 of the A.M.A., Guides, for a final combined impairment of
16 percent.
On July 3, 2009 the medical adviser concluded that Dr. Brewer’s 16 percent impairment
rating was incorrect. He stated range of motion could be used as a stand-alone approach for total
impairment of the RUE. Referencing Table 15-24 at page 475 of the sixth edition of the A.M.A.,
Guides, he opined that appellant had an eight percent permanent impairment of his RUE, based
upon Dr. Brewer’s October 19, 2007 range of motion measurements. The medical adviser,
however, did not provide any explanation as to why the rating by Dr. Brewer under the sixth
edition was deficient or not in conformance with the diagnosis-based protocols.
The Board notes that range of motion may under specific circumstances, be selected as an
alternative approach to rating impairment, in which case it is not combined with the diagnosisbased impairment, but rather stands alone as a rating.9 Rotator cuff injuries are included among
those diagnoses in the grid that may be rated using range of motion.10 The ability to use this
method of evaluation does not, however, eliminate the requirement to use the method producing
the higher rating.11 It was incumbent upon the medical adviser to fully explain why he did not
use the diagnosis-based estimate.
Accordingly, the Board finds that the case is not in posture for decision. The case is
remanded to the Office for further development on the extent of impairment to appellant’s right
arm under the A.M.A., Guides (6th ed. 2008).
CONCLUSION
The Board finds that the case is not in posture for decision as to the extent of appellant’s
right arm impairment.

9

Id. at 390, section 15.2(a).

10

Id. at 403, Table 15-5.

11

Id. at 20, Table 2-1.

4

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for further action
consistent with this decision.
Issued: August 3, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
TENNESSEE VALLEY HEALTH CARE
SYSTEM, Nashville, TN, Employer
__________________________________________

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Appearances:
Linda Jernigan, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1065
Issued: February 9, 2016

Case Submitted on the Record

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

JURISDICTION
On April 6, 2015 appellant, through her representative, filed a timely appeal from a
January 5, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established an injury causally related to factors of her
federal employment.

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted a new medical report. The Board can only review evidence that was before
OWCP at the time of the final decision on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On March 11, 2014 appellant, then a 53-year-old medical supply technician, filed an
occupational disease claim (Form CA-2) alleging that she sustained back and right leg injuries as
a result of her federal employment. She alleged that activities such as pulling, pushing, bending,
and lifting trays overhead contributed to her condition. On the claim form appellant indicated
that she first became aware of an employment-related condition on December 3, 2013. The
reverse of the claim form reports that she was last exposed to the identified factors on
January 27, 2014, and had been assigned light duty. On March 18, 2014 OWCP received an
employing establishment “incident report” describing a January 13, 2014 incident. The form
reports that appellant was injured while lifting “Zimmer trays” that had been put on the shelf and
had to be pulled off.
By letter dated March 18, 2014, OWCP requested that appellant submit additional factual
and medical evidence with respect to her claim. It included a questionnaire to describe in detail
the employment activities she believed contributed to her condition.
The record indicates that on April 21, 2014 OWCP received a treatment note dated
December 3, 2013 from Dr. Norman Hardman, a Board-certified internist, reporting that
appellant’s work included pushing heavy carts and she had developed right hip pain. There is
also a right hip x-ray report dated December 3, 2013 with a diagnosis of minimal osteoarthritis of
the right hip from Dr. Darin Morgan, a radiologist.
Appellant submitted a January 21, 2014 report from Dr. William Strickland, a Boardcertified neurologist. Dr. Strickland reported that appellant had bilateral leg pain, numbness, and
paresthesias since May 2013. He also noted low back pain, and leg weakness, worse on right
side. Dr. Strickland discussed the results of sensory and motor conduction studies. He
diagnosed a generalized peripheral neuropathy with no evidence of lumbar radiculopathy. In a
report dated February 11, 2014, Dr. Strickland provided a history that appellant’s right leg had
been giving way causing her to fall three or four times per year, worse since September 2013.
He also noted low back pain radiating into her legs, with tingling and numbness. Dr. Strickland
provided results on examination and diagnosed lumbago, sciatica, cervicalgia, and idiopathic
peripheral neuropathy. By report dated March 20, 2014, he indicated that appellant reported
improvement in back pain and radicular symptoms, but her neck pain had not changed.
Dr. Strickland indicated that appellant would be scheduled for a lumbar magnetic resonance
imaging (MRI) scan.
An employing establishment compensation specialist submitted an April 17, 2014 letter
indicating that appellant had worked at the employing establishment since April 25, 2010. The
compensation specialist further indicated that appellant had submitted a traumatic injury claim
for an injury on June 5, 2013.
By decision dated April 30, 2014, OWCP denied the claim for compensation. It found
that appellant had not submitted factual evidence to establish the alleged incidents, and had not
submitted probative medical evidence.
On May 29, 2014 appellant requested a review of the written record by an OWCP hearing
representative. She submitted an undated statement on June 4, 2014, noting that her job duties
included pulling case carts, which weighed approximately 200 pounds even when empty.
2

According to appellant, “the day” she injured her back while pushing carts and lifting trays that
weighed 45 pounds or more. She indicated that her injuries were caused by repetitive work and
she had tried to get the employing establishment to use lighter carts. Appellant submitted a
May 20, 2014 e-mail from a coworker reporting that there were concerns about the carts
expressed to the employing establishment. The coworker indicated that new wheels were put on
the carts, but this just caused the carts to move faster in the opposite direction.
With respect to additional medical evidence, appellant submitted reports from Dr. Damon
Petty, a Board-certified orthopedic surgeon. In a report dated April 30, 2014, Dr. Petty reported
that appellant had injured her back while “lifting some trays with Zimmer instruments.” He
indicated that appellant had persistent low back pain with occasional burning in her legs.
Dr. Petty provided results on examination, diagnosed low back strain with S1 joint pain, and
recommended physical therapy. By report dated May 28, 2014, he reported that appellant was
improving but still symptomatic. Dr. Petty provided results on examination and diagnosed
resolving low back sprain/S1 joint sprain, with possible mild L3-4 involvement. He opined that
pushing carts weighing over 200 pounds was “likely not the best area for her to work in” based
on appellant’s age and petite frame.
In a June 18, 2014 report, Dr. Petty reported that appellant’s low back was improved but
still symptomatic. He provided results on examination and diagnosed lumbar disc herniation.
Dr. Petty indicated that appellant would undergo a lumbar MRI scan. The record contains a
June 25, 2014 lumbar MRI scan report from Dr. L. Rogers, a radiologist. Dr. Rogers reported an
L5-S1 disc bulge with posterior annular tear, and mild central canal stenosis. In addition,
Dr. Rogers reported a disc bulge at L4-5, with bilateral narrowing.
Appellant began treatment with Dr. Thomas Baker, a Board-certified physiatrist. In a
report dated July 14, 2014, Dr. Baker provided a history that appellant complained of low back
and leg pain. He indicated that an L5-S1 transforaminal epidural steroid injection was given on
that date. Dr. Baker diagnosed lumbar spondylosis and lumbar radiculopathy. In a report dated
August 18, 2014, he indicated that another epidural injection had been given. By report dated
September 18, 2014, Dr. Baker provided results on examination. He diagnosed lumbosacral
spondylosis without myelopathy, lumbosacral radiculopathy, and chronic pain syndrome.
On November 14, 2014 the employing establishment submitted a position description of
the medical supply technician position. The physical demands of the position included lifting
packages and trays up to 40 pounds and pushing or pulling loaded carts weighing several
hundred pounds.
In a letter dated November 14, 2014, an employing establishment
compensation specialist reported that the wheels of the carts had been replaced and a supervisor
had indicated that, with proper mechanics, each cart would push and pull effectively. According
to the specialist, the supervisor indicated that the employees generally pulled the cart up to 10
feet per day. Appellant submitted a statement dated December 17, 2014, asserting that she had
to pull carts over 200 feet down a hallway.
Appellant submitted a brief report from Dr. Margaret Stolz, a Board-certified internist,
reporting that she had known appellant since 2009 and never treated her for back and neck
problems until 2013. The record also contains a brief note from Dr. Hardman dated
November 21, 2014 that appellant developed right hip pain, and her job involved pushing heavy
carts.
3

By decision dated January 5, 2015, OWCP’s hearing representative affirmed the denial of
the claim for compensation. She found that the factual evidence did establish that appellant’s job
duties included lifting trays and pushing or pulling heavy carts. However, she further found that
the medical evidence was insufficient to establish an employment-related medical condition.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.6
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.7
ANALYSIS
In the present case, appellant has alleged that she sustained injuries as a result of her job
duties as a medical supply technician. She filed an occupational disease claim, which is a claim
for injury produced by the work environment over a period longer that a single workday.8 While
there are references to specific incidents, such as an accident report for a January 13, 2014 lifting
incident, the claim in this case is for injuries related to work duties over a period of time. As to
the factual element of the claim, appellant alleged that she engaged in activity that included
lifting trays, and pushing and pulling heavy carts. OWCP’s hearing representative accepted that
appellant engaged in such activity. While the employing establishment referred to a supervisor’s
3

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

See Robert G. Morris, 48 ECAB 238 (1996).

6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

8

20 C.F.R. § 10.5(q).

4

statement that the distance the carts were moved was minimal, appellant asserted that sometimes
she had to move the carts down a hallway. No probative evidence contrary to appellant’s
assertion was provided.9
Appellant having established that she engaged in the identified work activity does not
establish an employment-related medical condition. She has the burden to submit medical
evidence with a clear diagnosis and a rationalized medical opinion on causal relationship
between the diagnosis and the identified employment factors. In this regard, the Board finds that
the medical evidence of record is insufficient to meet appellant’s burden of proof.
Dr. Hardman provided a very brief note dated December 3, 2013 reporting that
appellant’s job duties included pushing heavy carts and that she had developed right hip pain. A
similar note was dated November 21, 2014. Dr. Hardman does not include a detailed history,
results on examination, a firm diagnosis, or a rationalized medical opinion on causal relationship
with employment.
Dr. Strickland provided reports dated January 21, February 14, and March 20, 2014. He
did not provide a complete history discussing the identified work factors. Dr. Strickland
diagnosed lumbago, sciatica, cervicalgia, and a peripheral neuropathy, without providing an
opinion on causal relationship with the employment factors.
Appellant submitted reports dated April 30, May 28, and June 18, 2014 from Dr. Petty.
In the April 30, 2014 report, Dr. Petty writes that appellant had injured her back lifting some
trays. There is little detail provided with this statement. Dr. Petty did not provide a complete
history, discuss appellant’s job duties or explain when this lifting occurred. He initially
diagnosed low back sprain/S1 joint sprain, and in his June 18, 2014 report diagnosed a disc
herniation, although the subsequent June 25, 2014 MRI scan did not refer to a disc herniation.
Dr. Petty did not provide a rationalized medical opinion on causal relationship between a
diagnosed condition and the identified employment factors.
The reports from Dr. Baker do not provide a rationalized medical opinion. The history
provided in his July 14, 2014 report records only that appellant complained of low back and leg
pain. Dr. Baker diagnosed lumbar spondylosis, lumbar radiculopathy, and chronic pain
syndrome. He does not provide a complete history, discuss appellant’s job duties, or provide an
opinion on causal relationship between a diagnosed condition and the identified employment
factors.
Appellant also submitted a brief note dated December 11, 2014 from Dr. Stolz. The note
indicates only that appellant did not report lumbar or neck problems prior to 2013, without
providing additional relevant evidence.
The burden of proof lies with appellant to establish a diagnosed condition causally related
to her federal employment. In the present case, the medical evidence, for the reasons discussed
above, is insufficient to meet appellant’s burden of proof. There is no medical report with a
complete history and an opinion, supported by medical rationale, relating a diagnosed condition
to the identified employment factors.
9

The Board notes that an employee’s statement regarding employment incidents is of great probative value and
will stand unless refuted by strong or persuasive evidence. Thelma Rogers, 42 ECAB 866 (1991).

5

On appeal, appellant notes that she submitted an additional report from Dr. Petty. As
explained above, the Board is precluded from reviewing new evidence on appeal. Appellant
argued that she performed her job and all she wants is to have her back properly treated. It is her
burden of proof to establish a back injury causally related to her federal employment. The Board
has reviewed the medical evidence of record and finds that it is insufficient to meet appellant’s
burden in this case.
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 appellant has not established an injury causally related to factors of her
federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 5, 2015 is affirmed.
Issued: February 9, 2016
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
K.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fernley, NV, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0730
Issued: June 5, 2020

Case Submitted on the Record

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

JURISDICTION
On February 20, 2019 appellant, through counsel, filed a timely appeal from a November 2,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral shoulder
conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On March 30, 2018 appellant, then a 57-year-old rural mail carrier, filed an occupational
disease claim (Form CA-2), alleging that she developed a right shoulder torn rotator cuff and an
inflamed left shoulder causally related to factors of her federal employment including lifting large
heavy boxes and delivering mail out of the vehicle window. She indicated that she first became
aware of the condition on March 1, 2015 and its relationship to her federal employment on
December 1, 2017. Appellant explained that she did not file the claim within 30 days of realizing
that her condition was caused or aggravated by her employment because she had filed a previous
claim which was denied, but her shoulder continued to worsen. She noted that she received the
results of magnetic resonance imaging (MRI) scans, which displayed damage to her shoulders.3
On the reverse side of the claim form, the employing establishment indicated that appellant first
received medical treatment on January 5, 2018 and stopped work on March 20, 2018.
In a March 30, 2018 statement, appellant related that she began experiencing shoulder pain
in March 2015 and was treated by a chiropractor and orthopedic surgeon, but that her shoulder
pain returned after a year, and she filed a claim. She indicated that in January 2018 she again saw
an orthopedist and received a cortisone injection in her right shoulder, returned on February 26,
2018 when her shoulders again started hurting, and the doctor scheduled the MRI scans. The
orthopedist then told her that she had a torn rotator cuff in her right shoulder and that her left
shoulder was inflamed. Appellant indicated that on March 21, 2018 she became unable to perform
her job tasks.
On a March 30, 2018 work status form, Dr. Michael Edmunds, a Board-certified orthopedic
surgeon, advised that appellant could return to light duty with upper extremity restrictions.
By development letter dated April 4, 2018, OWCP advised appellant that additional
evidence was required to support her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and attached a questionnaire for her completion. OWCP
also requested a narrative medical report from appellant’s physician that provided a firm diagnosis
of a condition and a rationalized opinion on how appellant’s employment duties caused or
aggravated her condition. It afforded her 30 days to provide the necessary information.
In an undated statement, A.P., the officer-in-charge at the employing establishment, noted
that on March 20, 2018 appellant advised him that her condition was worsening, and that the doctor
requested an MRI scan, which showed that appellant had a torn rotator cuff. He indicated that
appellant then contacted him to file a claim. A.P. noted that she had filed a claim the previous
year which was denied. He reported that appellant had submitted medical documentation and
requested a CA-2 form.
3

The MRI scan reports are not found in the case record.

2

In response to the April 5, 2018 development letter, appellant submitted a timeline from
March 2015 to May 2018 concerning her shoulder problems. She indicated that in March 2015
she first noticed problems in her arms and shoulder, noting that they were fine in the morning, but
ached, burned, and were uncomfortable on her drive home from work. Appellant related that she
had several months of treatment with a chiropractor, and the pain subsided. She indicated that she
had purchased a lightweight hand truck to aid with heavy and awkward packages at work, but that
in July 2016 severe pain returned and she again sought medical care with Dr. Edmunds who
administered an injection her shoulder which relieved her pain until October/November 2017 when
the pain returned. Appellant indicated that she again sought medical treatment and had another
injection in her right shoulder, but returned to see Dr. Edmunds in February 2018 who scheduled
an MRI scan of both shoulders. She noted the MRI scan results and stated that she could no longer
tolerate the pain, so that on March 20, 2018 she stopped work and filed her claim. Appellant noted
that, at the present time, her left shoulder had improved, but her right shoulder interrupted her
sleep. She indicated that, even with the hand truck, she still had to get packages into and out of
the back of the postal vehicle and that swinging heavy trays of mail into the front also contributed
to her pain. Appellant maintained that the volume of packages had increased, and that even with
packages that were not heavy, the repeated stretching and reaching needed for mail handling were
contributing factors to her shoulder pain. She reiterated her belief that the pain was work related
because it had lessened in the morning, but was worse after work. Appellant noted that right
shoulder surgery was tentatively scheduled for May 16, 2018.
Appellant indicated that she worked from 7:00 a.m. to 4:00 p.m. ﬁve days a week, plus or
minus 30 minutes, and spent approximately 2.5 hours casing mail, 30 minutes sorting up to 200
packages per day and loading them and trays of mail into her vehicle. She related that loading the
mail trays, which could weight up to 45 pounds, required picking them up and swinging them into
the front tray of her vehicle with the majority of the weight on her right side and shoulder height.
Appellant reported that packages could weigh up to 75 pounds plus, and could be large and bulky.
She indicated that she spent 4.5 to 6 hours daily delivering mail out of the vehicle, which required
reaching out the window, pulling on mailboxes that could stick. Appellant maintained that thick
mail put a strain on her right wrist, thumb, and arm when delivering out the window. She also
indicated that she owned horses and livestock, but that since having shoulder issues, she had to
hire someone to care for her livestock.
An April 24, 2018 state workers’ compensation form report by Dr. Alan Taylor, an
osteopath Board-certified in occupational medicine, noted appellant’s complaint of bilateral
shoulder pain and a history of injury while delivering mail due to repetitious heavy lifting, which
caused a strain in both shoulders. In response to the question “from the information given by the
employee, together with the medical evidence, can you directly connect this injury or occupational
disease as job incurred,” he wrote “No.” Dr. Taylor advised that appellant could return to work
with a 10-pound lifting restriction.
In additional reports dated April 24, 2018, Dr. Taylor reported appellant’s complaint of a
chronic shoulder condition that started in September 2015 and was not precipitated by a particular
incident. He noted appellant’s history of treatment including MRI scans that demonstrated a right
shoulder rotator cuff tear and left shoulder rotator cuff tendinitis. Appellant described the pain in
her right shoulder as sharp and moderate-to-severe and indicated that it limited her range of motion,
but that the pain in her left shoulder was not as bad. Dr. Taylor noted examination findings of no

3

gross deformities on the right, with diffuse tenderness to palpitation over the entire shoulder,
decreased abduction, and intact strength and sensation. The left shoulder demonstrated a gross
deformity, with diffuse tenderness to palpation minimal over the anterior shoulder, full range of
motion, and intact strength and sensation. Dr. Taylor advised that she could return to restricted
duty from April 24, 2018 to May 29, 2018. He recommended over-the-counter medication.
By decision dated May 11, 2018, OWCP accepted that appellant’s employment factors
occurred as alleged, but denied the claim because the evidence of record was insufficient to
establish that appellant’s bilateral shoulder conditions were causally related to the accepted factors
of federal employment. It concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.4
In a June 1, 2018 work status form, Dr. Edmunds diagnosed right rotator cuff tendinitis
and advised that appellant should remain off work until her next appointment in four weeks. On
a treatment note signed by Dr. Edmunds on June 12, 2018, he indicated that appellant was seen for
a follow-up appointment two weeks after a non-authorized right shoulder supraspinatus tendon
repair, which took place on June 1, 2018. Dr. Edmunds indicated that the small incisions healed.
He referred appellant for physical therapy, recommended that she continue to wear a sling until
her next visit, and advised that she avoid active use of her shoulder. Dr. Edmunds noted that he
had discussed the history of appellant’s rotator cuff injury with her, and that she reported that she
did far more lifting at work than she did at home. He opined that it was more likely than not that
the repetitious lifting that appellant had done at work for the last 11 years was the primary
contributor to her injury.
On August 6, 2018 appellant requested reconsideration.
By decision dated November 2, 2018, OWCP denied modification of the May 11, 2018
OWCP decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,6 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to

4

The record includes a second May 11, 2018 decision that is incomplete.

5

Supra note 2.

6
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

4

the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (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 identified employment factors.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish bilateral
shoulder conditions causally related to her accepted federal employment factors.
In form reports dated April 24, 2018, Dr. Taylor did not address whether appellant’s
shoulder condition was employment related. In response to a question on an April 24, 2018 state
workers’ compensation form report inquiring: “from the information given by the employee,
together with the medical evidence, can you directly connect this injury or occupational disease as
job incurred,” he responded “No.” The Board has held that medical evidence that negates causal
relationship is of no probative value.13 As Dr. Taylor negated causal relationship between the

7

N.M., Docket No. 19-0258 (issued May 8, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59
ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
8

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
10

N.M., supra note 7; T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB 238 (1996).

11

L.M., Docket No. 19-1981 (issued May 11, 2020); M.V., Docket No. 18-0884 (issued December 28, 2018); T.H.,

12

L.M., id.; Victor Woodhams, supra note 9.

id.

13
B.W., Docket No. 18-1674 (issued May 7, 2020, T.W., Docket No. 19-0677 (issued August 16, 2019); Solomon
Polen, 51 ECAB 341 (issued March 1, 2000).

5

accepted employment factors and appellant’s diagnosed shoulder conditions, his reports are
insufficient to meet her burden of proof.14
On June 12, 2018 Dr. Edmund reported a history that appellant did far more lifting at work
than she did at home. He opined that it was more likely than not that the repetitious lifting appellant
had done at work for 11 years was the primary contributor to her injury. The Board has held that
a medical opinion is of limited value if it is conclusory in nature.15 A medical opinion must provide
an explanation of how the implicated employment factors physiologically caused, contributed to,
or aggravated the specific diagnosed conditions.16 Dr. Edmunds did not provide an explanation of
the physiological mechanism by which appellant’s accepted factors of federal employment caused
her shoulder conditions. As noted, a physician’s opinion must be based on a complete factual and
medical background, must be expressed in terms of a reasonable degree of medical certainty, and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors.17 For this reason, Dr. Edmund’s
opinion is insufficient to establish causal relationship.
Appellant has not submitted any rationalized medical evidence establishing that her
claimed bilateral shoulder conditions are causally related to the accepted factors of her federal
employment. As such, she has not met her burden of proof.
On appeal counsel maintained that the November 2, 2018 decision was contrary to law and
fact. As explained above, the medical evidence of record is insufficient to meet appellant’s burden
of proof.18
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral
shoulder conditions casually related to her accepted federal employment factors.

14

See J.L., Docket No. 17-0177 (issued April 24, 2017).

15

M.S., Docket No. 19-0189 (issued May 14, 2019).

16

Id.

17

Supra notes 11 and 12.

18

L.J., Docket No. 19-1343 (issued February 26, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the November 2, 2018 decision of the Office of the
Workers’ Compensation Program is affirmed.
Issued: June 5, 2020
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1978
Issued: January 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 12, 2014 appellant filed a timely appeal from a March 18, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As the last merit decision
was issued in this case on February 21, 2013, pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the
merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that his request for reconsideration was not timely filed and
did not establish clear evidence of error.
FACTUAL HISTORY
On July 20, 2006 appellant, then a 41-year-old letter carrier, filed a traumatic injury claim
alleging that on July 20, 2006 he experienced a sharp pain in his right wrist as a result of pushing
1

5 U.S.C. § 8101 et seq.

a loaded cart and turning right. He did not stop work. OWCP accepted appellant’s claim for
tenosynovitis of the right hand and wrist.
In a November 8, 2006 progress report, Dr. Nicole M. Pham-Bailey, Board-certified in
physical medicine and rehabilitation, conducted a follow-up examination for appellant’s right
wrist and thumb pain. Appellant informed her that his right thumb, hand, and forearm pain had
increased since he returned to casing mail over two hours at work. Upon examination of his
right wrist, Dr. Pham-Bailey observed tenderness of the dorsal right wrist compartment and pain
with right wrist dorsiflexion to 60 degrees. She reported some tightness in the thumb extensor
tendon and grossly intact sensation. Finkelstein’s test was positive. Dr. Pham-Bailey diagnosed
right wrist de Quervain’s tenosynovitis and resolved right thumb abrasion. She recommended
that appellant work modified duty with restrictions of no grasping with the right hand, no lifting
over five pounds, and limited casing of the mail with his left hand (right hand assist) up to three
hours in an eight-hour workday.
On February 13, 2007 appellant started working modified duty. He continued to receive
medical treatment and experience intermittent periods of disability. OWCP paid appropriate
medical and wage-loss compensation benefits. On March 31, 2009 appellant stopped work
because the employing establishment was no longer able to accommodate his work restrictions.
OWCP again paid appropriate wage-loss compensation benefits. On August 4, 2009 appellant
was placed on the periodic rolls.
On July 27, 2011 OWCP referred appellant, along with a statement of accepted facts and
the medical record, to Dr. Joseph P. Conaty, a Board-certified orthopedic surgeon, for a second
opinion examination to determine whether appellant continued to suffer residuals and disability
as a result of the July 20, 2006 employment injury. In a September 22, 2011 report, Dr. Conaty
reviewed the medical record and the statement of accepted facts. Upon examination of
appellant’s upper extremities, he reported normal muscle strength throughout the muscle groups
and minimal tenderness over the medial aspect of the wrist, overlying the radial styloid.
Finkelstein, Phalen’s, and Tinel’s signs were negative bilaterally. X-rays of the right wrist and
hand with comparison view of the left demonstrated normal bone density and no arthritic
changes. Dr. Conaty opined that appellant’s right wrist strain with tendinitis had clinically
recovered. He noted that there was only localized, minimal tenderness but x-rays and range of
motion were normal. Dr. Conaty recommended an up-to-date magnetic resonance imaging
(MRI) scan examination and opined that appellant was capable of performing his usual job as a
letter carrier without restrictions.
OWCP referred appellant for an MRI scan. In an October 20, 2011 MRI scan of the right
wrist, Dr. John N. Loizeaux-Witte, a Board-certified diagnostic radiologist, observed mild
arthrosis at the articulation between the radioulnar joint and lunate, characterized by mild lunate
marrow and increased signal intensity. He also reported no dissociation or widening between the
proximal or distal carpals.
In an October 17, 2011 supplemental report, Dr. Conaty reviewed the October 20, 2011
MRI scan report. He opined that, based on the findings, there was no evidence of tendinitis but
only mild, limited arthrosis to the radicular joint and lunate with an intact fibrocartilage complex.
Dr. Conaty stated that his previous impression remained unchanged.

2

On November 8, 2011 OWCP issued a proposal to terminate appellant’s medical and
wage-loss compensation benefits based on the second opinion report of Dr. Conaty who
determined that appellant’s accepted right wrist injury had resolved. In a decision dated
December 15, 2011, it terminated appellant’s entitlement to wage-loss and medical
compensation benefits effective December 17, 2011.
In an appeal request form dated September 17, 2012 and received by OWCP on
September 27, 2012, appellant requested reconsideration. In an attached statement, he noted that
he did not realize that all his medical benefits would be terminated. Appellant contended that he
still needed medication for continued pain and swelling in his right hand and for his mental
health. He argued that Dr. Pham-Bailey’s December 6, 2011 report demonstrated that he still
had chronic de Quervain’s tenosynovitis and right hand chronic tendinitis. Appellant pointed out
that Dr. Pham-Bailey had treated him since the beginning of his condition but Dr. Conaty only
examined him once. He questioned how Dr. Conaty could opine that his right wrist and hand
were okay when he never asked him how his hand felt.
In a December 6, 2011 report, Dr. Pham-Bailey stated that she was appellant’s treating
physician for his accepted conditions of right radial styloid tenosynovitis and right wrist and
hand tenosynovitis. She noted that appellant continued to complain of chronic right wrist pain
over the dorsal wrist and thumb. Upon examination of his right wrist and thumb, Dr. PhamBailey observed mild tenderness of the first dorsal right wrist compartment and no tenderness
over the right radial styloid. Finkelstein’s test and carpal compression testing were negative.
Dr. Pham-Bailey diagnosed right chronic de Quervain’s tenosynovitis and right chronic extensor
tendinitis. She stated that further medical treatment should be provided on an industrial basis,
which included medication and a right wrist and thumb brace. Dr. Pham-Bailey also reported
that appellant still needed permanent work restrictions of no repetitive right hand grasping and
no carrying or delivery of mail with the right hand.
In a January 21, 2012 report, Dr. Brian Hutchinson, a Board-certified orthopedic surgeon,
related appellant’s complaints of right wrist pain for years that increased with swelling when he
tried to do significant activity with his wrist. He noted that appellant sustained an injury at work
when he pushed a heavy cart and twisted his wrist. Upon examination of the right upper
extremity, Dr. Hutchinson observed full range of motion actively of the digits and tenderness to
palpation diffusely at the radial and dorsal aspect of the wrist. He also noted pain with maximal
flexion and extension of the wrist in the same area. Range of motion of the wrist was good.
Finkelstein’s test was positive and Tinel’s test was mildly positive for carpal tunnel.
Dr. Hutchinson reported that x-rays of the wrist taken that day were essentially unremarkable
with some slight calcification at the radial styloid. He opined that these findings might be related
to chronic de Quervain’s tendinitis. Dr. Hutchinson diagnosed tendinopathy of extensor carpi
radialis, extensor digitorum tendons, and severe tendinopathy or partial tear of extensor carpi
ulnaris tendon. He stated that he discussed the problem and treatment options with appellant and
gave appellant a cortisone injection.
By decision dated February 21, 2013, OWCP denied modification of the December 15,
2011 termination decision. It found that Dr. Conaty’s second opinion report continued to
represent the weight of medical evidence that appellant no longer suffered residuals or disability
causally related to the July 20, 2006 employment injury.

3

In an appeal request form dated February 17, 2014 and received by OWCP on
February 27, 2014, appellant requested reconsideration of the February 21, 2013 decision. In an
attached statement, he related that he had suffered from post-traumatic stress disorder and other
mental health struggles for the past few years. Appellant noted that his family helped with his
struggles but his mom recently died from breast cancer. He requested that OWCP consider the
most recent February 15, 2014 examination by Dr. John T. Knight, a Board-certified orthopedic
surgeon, who specialized in hand surgery, and provided Dr. Knight’s credentials. Appellant
reviewed the examination findings of Drs. Pham-Bailey, Hutchinson, and Knight and noted that
they all continued to diagnose him with his accepted condition of right wrist tenosynovitis. He
alleged that Dr. Conaty’s x-ray machine was worn-out and old and did not show a detailed,
thorough picture. Appellant contended that the MRI scan and x-ray machines of the hands
specialists, Drs. Hutchinson and Knight, were newer, which was why they were able to assess
that his right wrist injury had not yet resolved.
In a February 15, 2014 report, Dr. Knight examined appellant for complaints of right
wrist pain. He noted that in 2007 appellant was pushing a heavy cart for the employing
establishment when he developed pain in his right hand and wrist. Dr. Knight reviewed
appellant’s history and stated that an October 11, 2011 MRI scan of the right wrist revealed
increased signal on the first dorsal compartment consistent with extensor tenosynovitis.
Examination of the right wrist revealed mild swelling and moderate tenderness of the first dorsal
compartment and mild-to-moderate tenderness at the trapeziometacarpal (TMC) joint.
Dr. Knight reported normal sensation with no crepitus and full range of motion in all digits of the
right hand and wrist. Finkelstein test was positive. Dr. Knight stated that x-rays of the right
hand and wrist taken that day were negative. He diagnosed right wrist de Quervain’s synovitis
and tenosynovitis. Dr. Knight opined that it was within medical probability that appellant
developed right hand and wrist injury as a result of pushing and lifting a mail cart in 2007 at
work. He stated that appellant’s right wrist injury should be covered under federal workers’
compensation.
Appellant submitted partial progress notes by Dr. Pham-Bailey dated July 11, 2007 and
February 26, 2009. Dr. Pham-Bailey related appellant’s complaints of hand pain and diagnosed
right wrist de Quervain’s tenosynovitis and extensor tendinitis. She stated that appellant could
continue to work with restrictions of no repetitive right hand forceful grasping or hand motion
over five pounds and no carrying or delivery of mail with right hand.
Appellant also resubmitted part of Dr. Pham-Bailey’s December 6, 2011 report and
Dr. Hutchinson’s January 20, 2012 report.
By decision dated March 18, 2014, OWCP denied appellant’s request for reconsideration
on the grounds that his request was untimely filed and that he failed to present clear evidence of
error on the part of OWCP. It determined that the most recent merit decision on record was the
February 21, 2013 decision denying modification of the termination decision. Because
appellant’s request for reconsideration was not received until February 27, 2014, his claim was
untimely filed. OWCP further determined that the evidence submitted after the last merit
decision was insufficient to establish clear evidence of error.

4

LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit,
OWCP regulations provide that an application for reconsideration must be received by OWCP
within one year of the date of the OWCP decision for which review is sought.2 The Board has
found that the imposition of the one-year time limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.3 The one-year period
begins on the date of the original decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues. This includes any hearing or review
of the written record decision, any denial of modification following reconsideration, any merit
decision by the Board, and any merit decision following action by the Board.4
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nonetheless undertake a limited review of the evidence previously of record to determine
whether the new evidence demonstrates clear evidence of error.5 In this regard, OWCP will limit
its focus to a review of how the newly submitted evidence bears on the prior evidence of record.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest on
its face that OWCP committed an error.7 Evidence that does not raise a substantial question
concerning the correctness of OWCP’s decision is insufficient to establish clear evidence of
error.8 It is not enough merely to show that the evidence could be construed so as to produce a
contrary conclusion.9 The evidence submitted must not only be of sufficient probative value to
create a conflicting medical opinion or establish a clear procedural error, but must be of
sufficient probative value to shift the weight of the evidence in favor of the claimant and raise a
substantial question as to the correctness of OWCP’s decision.10
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 created a conflict in medical opinion requiring further development, is not clear evidence of
2

20 C.F.R. § 10.607.

3

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

4

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

5

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

6

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

7

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

8

Jimmy L. Day, 48 ECAB 652 (1997).

9

Id.

10

Annie L. Billingsley, 50 ECAB 210 (1998).

5

error.11 The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of OWCP such that it improperly denied merit review in the
face of such evidence.12
ANALYSIS
The only decision before the Board is the March 18, 2014 nonmerit decision, in which
OWCP denied appellant’s request for reconsideration on the grounds that his request was
untimely filed and filed to establish clear evidence of error. In a decision dated February 21,
2013, OWCP denied modification of a December 15, 2011 decision that terminated appellant’s
medical and wage-loss compensation benefits. In an appeal request form, received by OWCP on
February 27, 2014, appellant requested reconsideration. The Board finds that more than one year
elapsed from the most recent OWCP merit decision dated February 21, 2013, to appellant’s
request for reconsideration received on February 27, 2014. Thus, appellant’s request for
reconsideration was untimely.
The Board also finds that appellant failed to establish clear evidence of error. Along with
his request for reconsideration, appellant provided a statement explaining that he suffered from
post-traumatic stress disorder and other mental health conditions. He requested that OWCP
consider the most recent February 15, 2014 examination by Dr. Knight, which demonstrated that
his right wrist injury had not yet resolved. The Board finds that appellant’s allegations do not
raise a substantial question as to the correctness of OWCP’s February 21, 2013 decision.
Appellant submitted various reports by Drs. Pham-Bailey and Hutchinson that were
previously of record and partial progress notes by Dr. Pham-Bailey dated July 11, 2007 and
February 26, 2009. He also submitted a February 15, 2014 report by Dr. Knight not previously
reviewed by OWCP. Dr. Knight reviewed appellant’s medical history and provided findings on
examination of his right wrist. He diagnosed right wrist de Quervain’s synovitis and
tenosynovitis. Dr. Knight opined that appellant’s right hand and wrist injury resulted from his
employment and stated that the injury should be covered under federal workers’ compensation.
While his report is generally supportive of appellant’s current right wrist condition and inability
to work full duty, it does not establish clear error on the part of OWCP in terminating appellant’s
medical and wage-loss compensation benefits.
The medical reports appellant submitted in support of his untimely request for
reconsideration are insufficient to shift the weight of evidence in favor of appellant’s claim or
raise a substantial question that OWCP erred by terminating his medical and wage-loss
compensation benefits. Therefore, the Board finds that he has not presented clear evidence of
error on the part of OWCP.
As previously noted, the term clear evidence of error is intended to represent a difficult
standard. 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

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.5(a) (October 2011).

12

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).

6

development, is not clear evidence of error.13 None of the evidence submitted manifests on its
face that OWCP committed an error in terminating appellant’s compensation based on the
finding that he no longer suffered residuals or disability causally related to his right wrist injury.
Thus, the evidence is insufficient to establish clear evidence of error.
On appeal, appellant reiterated his disagreement with Dr. Conaty’s second opinion report
and alleged that the medical evidence continued to support his need for medical treatment. As
previously explained, however, the Board does not have jurisdiction over the merits of the
termination issue of the claim. It can only make a determination regarding the March 18, 2014
nonmerit decision of OWCP.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 18, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 20, 2015
Washington, DC

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

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

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

13

Supra note 11.

7