United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, White Plains, NY,
Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1760
Issued: January 23, 2018

Case Submitted on the Record

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

JURISDICTION
On September 1, 2016 appellant, through counsel, filed a timely appeal from a March 11,
2016 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 claim.

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 met his burden of proof to establish a low back condition
causally related to the accepted January 2, 2013 employment incident.
FACTUAL HISTORY
On January 7, 2013 appellant, then a 40-year-old mail handler/equipment operator, filed a
traumatic injury claim (Form CA-1) alleging that he injured his lower back on January 2, 2013 at
4:45 p.m. while connecting a postal container (post-con) to a cart. The post-con was reportedly
overloaded. Appellant’s regular tour was from 3:30 p.m. to 12:00 a.m. He stopped work on
January 7, 2013.
In a January 11, 2013 note, Dr. Young Don Oh, an orthopedic surgeon, diagnosed lumbar
disc herniations and noted that appellant was totally disabled from work from January 7 to
February 11, 2013.
In a January 23, 2013 letter, the employing establishment controverted the claim as
appellant continued to work for the remainder of his work shift, did not report the injury for
another five days, was off work on Family and Medical Leave Act five days prior to the reported
date of injury, and the present claim was identical to a September 26, 2010 work injury under
OWCP File No. xxxxxx366.3
In a letter dated January 29, 2013, OWCP requested that appellant provide additional
factual and medical evidence in support of his claim.
In a February 6, 2013 statement, appellant indicated that he told his supervisor on
January 2, 2013 that he had been injured. He noted that his injury occurred when he pulled on a
post-con to connect it to a cart and that he was unable to get an appointment to see Dr. Oh prior
to January 7, 2013.
In a February 7, 2013 note, a physician assistant placed appellant off work through
March 11, 2013.
In a January 7, 2013 report, Dr. Oh noted that appellant returned to his office after being
seen more than two years prior for lower back pain, which he experienced that week. He noted a
July 9, 2012 magnetic resonance imaging (MRI) scan showed degenerative disc disease,
including disc bulging/herniations at L4-5 and L5-S1. An assessment was made of herniated
lumbar disc and lumbar degenerative disc disease. In a January 11, 2013 report, Dr. Oh
indicated that appellant was scheduled for a repeat MRI scan of his lumbosacral spine. An
assessment of continuing low back pain with underlying bulging/herniated discs was provided.
On February 20, 2013 Dr. Oh referred appellant to physical therapy for reevaluation of herniated
lumbar disc and lumbar radiculopathy.
3

The claim date of injury, September 26, 2010, was accepted for lumbar sprain, aggravation of spondylolisthesis,
and aggravation of lumbosacral spondylosis without myelopathy. Under File No. xxxxxx366 OWCP terminated
appellant’s wage-loss compensation and medical benefits, effective November 3, 2011.

2

In a January 8, 2013 note, Dr. Chang Kang, a Board-certified anesthesiologist and pain
management specialist, provided an assessment of acute lumbar radiculopathy.
A January 14, 2013 lumbar spine MRI scan report contained an impression of disc bulge
at L4-5 and L5-S1 disc herniation. An October 20, 2010 lumbar spine MRI scan contained an
impression of spondylolisthesis and spondylosis at L5-S1 and disc herniation at L5-S1 with no
nerve impingement.
By decision dated March 4, 2013, OWCP denied the claim, finding that the medical
evidence of record did not establish causal relationship between the accepted January 2, 2013
work incident and a diagnosed back condition. It found that the medical evidence of record
failed to provide rationale necessary to establish causal relationship.
On March 8, 2013 appellant requested an oral hearing before OWCP’s Branch of
Hearings and Review. The hearing was held on July 15, 2013. Appellant testified that, on
January 2, 2013, he felt back pain when he pulled a post-con to attach it to a cart and that he had
also felt back pain while driving the motorized cart prior to making the connection between the
cart and the post-con. He testified that he had returned to full-duty work on April 15, 2013 per
Dr. Kang’s opinion.
In a March 7, 2013 report, Dr. Kang noted that he saw appellant on January 8, 2013 for
complaints of moderate-to-severe low back pain. Appellant reported that he was injured at work
on January 2, 2013 while he was working on an electric cart. He felt acute pain when he was
trying to connect a hook to the cart. Appellant could not straighten himself up because of pulling
pain on his back. Dr. Kang noted appellant’s physical examination findings when appellant saw
him on January 8 and March 7, 2013. He indicated that appellant has a history of back pain and
MRI scan findings on July 9, 2012 reported L5 spondylosis and mild bulging discs at L4-5 and
L5-S1. The MRI scan of lumbar spine, which was taken after the incident on January 14, 2013,
reported L4-5 bulging annulus with annual tear and L5-S1 posterolateral disc herniation to the
left side. Dr. Kang indicated that the MRI scan reports needed to be compared for further
evaluation. He advised that appellant continue with physical therapy, prescription drugs, and
recommended an epidural injection.
In an April 11, 2013 report, Dr. Kang diagnosed lumbar radiculopathy and lumbar disc
displacement. He released appellant to full-duty work.
An April 1, 2013 note from a physical therapist indicated that appellant had been
undergoing physical therapy treatment for back pain since January 3, 2013.
By decision dated August 15, 2013, an OWCP hearing representative affirmed OWCP’s
March 4, 2013 decision. He found that the medical evidence of record was insufficient to
establish causal relation.
On March 7, 2014 appellant, through counsel, requested reconsideration.
In a February 28, 2014 report, Dr. Kang indicated that he first saw appellant on June 7,
2012 for complaints of low back pain when operating heavy equipment at work. He indicated
that appellant went through physical therapy, acupuncture, and an epidural injection. Dr. Kang
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reported that on January 2, 2013 appellant complained of pain and went to his local physician,
who prescribed physical therapy. Appellant saw him on January 8, 2013 and his pain had
worsened. He reported low back pain worse due to acute injury during work on January 2, 2013
after he had pulled a heavy object. Dr. Kang diagnosed lumbar radiculopathy and acute
exacerbation of back pain and scheduled appellant for a lumbar spine MRI scan. He reported the
January 14, 2013 MRI scan findings. Dr. Kang noted that, on the January 18, 2013 follow-up
visit, appellant reported that the pain was better, but had spread to the lower extremities. He
diagnosed lumbar radiculopathy and lumbar disc displacement. Dr. Kang reported appellant’s
examination findings and working diagnoses of lumbar radiculopathy at subsequent office visits
from March 7, 2013 through January 30, 2014. He opined that appellant had an aggravation of
his degenerative lumbar spine disorder with radiculopathy, most probably related to the
January 2, 2013 job injury. Dr. Kang indicated that appellant had no sharp pain associated with
his usual daily activities such as walking, sitting, or standing prior to January 2, 2013 and that
appellant’s pain level reached new highs for 10 months after January 2, 2013. Appellant also
complained of radiating pain and paresthesia to his right hip and right posterior thigh. Dr. Kang
also reported that the MRI scan of the lumbar spine taken after January 2, 2014 showed a greater
degree of bulging and herniation at the L4-5 and L5-S1 level.
By decision dated May 13, 2015, OWCP denied modification of the August 15, 2013
decision. It found Dr. Kang’s February 28, 2014 report insufficient to establish appellant’s claim
because the physician provided no objective evidence or medical rationale to support or establish
a change in his baseline condition, or that any possible changes were in fact connected to the
claimed work incident of January 2, 2013.
On June 19, 2015 counsel requested reconsideration.
In a June 8, 2015 note, Dr. Kang indicated that appellant was known to have a low back
problem in the past for which he provided treatment. He indicated that there were significant
differences in MRI scan findings between the prior July 9, 2012 and January 14, 2013 MRI scans
of the lumbar spine, such as an annulus tear at L4-5, a disc herniation instead of a bulge at L5S1, and the fact that appellant sought medical care right after he felt pain at work while pulling a
post-con to an electric cart. For those reasons, Dr. Kang opined that appellant injured his back at
work.
By decision dated August 20, 2015, OWCP denied modification of its May 13, 2015
decision. It found that Dr. Kang failed to provide any medical rationale in his June 8, 2015
report which explained how pulling a hook to connect to the post-con caused, aggravated, or
contributed to the diagnosed conditions.
On December 16, 2015 counsel again requested reconsideration.
In a December 16, 2015 report, Dr. Kang reiterated the contents of his prior report dated
February 28, 2014. The only change in that report from the February 28, 2014 report was the
following paragraph wherein Dr. Kang indicated:
“On Jan[uary 2,] 2013 [appellant] was pulling a post[-]con to an electric cart
using his right hand, he felt sudden onset of severe back pain which radiated to his

4

right leg. Although the post-cons were on wheels, each of them weighed about
1000 [pounds] and he had to use enough force to hook them up to an electric cart.
While [appellant] was performing his duty as usual, he heard popping in his body
and he could not stand up because of pain on his right leg. He experienced severe
pain in low back and numbness/tingling and weakness noted in the low
extremities. [Appellant] went to the local [physician] who recommended physical
therapy and MRI [scan] of lumbar spine.”
Dr. Kang indicated that appellant had no sharp pain associated with his usual daily
activities such as walking, sitting, or standing prior to January 2, 2013, and that his pain level
reached new highs after January 2, 2013 for 10 months. Appellant also complained of radiating
pain and paresthesia to his right hip and right posterior thigh. He also reported that the lumbar
spine MRI scan taken after January 2, 2013 showed a greater degree of bulging and herniation at
the L4-5 and L5-S1 levels. Dr. Kang concluded, as he did in his prior report, that appellant had a
definite aggravation of his degenerative lumbar spine disorder with radiculopathy, most likely
related to the January 2, 2013 job injury.
By decision dated March 11, 2016, OWCP denied modification of its August 20, 2015
decision. It found that Dr. Kang’s December 16, 2015 report was the same as his February 28,
2014 report and the only new information provided was the mechanism of injury of the
January 2, 2013 work incident. OWCP found that he failed to provide a discussion or rationale
on causality between the preexisting conditions and the January 2, 2013 work incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish 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.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a

4

See supra note 2.

5

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

6

Elaine Pendleton, 40 ECAB 1143 (1989).

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personal injury.7 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.8
In any case where a preexisting condition involving the same part of the body is present,
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.9
ANALYSIS
Appellant claimed that he sustained a low back injury as a result of connecting a post-con
on January 2, 2013. OWCP accepted that the claimed incident occurred as alleged. It found,
however, that the medical evidence of record is insufficient to establish a diagnosed lumbar
condition causally related to the accepted January 2, 2013 work incident.
Appellant submitted several reports from Dr. Kang. Progress notes from Dr. Kang
indicated that appellant’s diagnosed medical condition was sustained at work. The Board has
found that the mere fact that a condition manifests itself or is worsened during an employment
period does not raise an inference of causal relationship between the two.10 In a March 7, 2013
report, Dr. Kang noted the history of injury and indicated that appellant had a history of back
pain. He noted MRI scan findings of July 9, 2012, taken prior to the January 2, 2013 incident,
and MRI scan findings of January 14, 2013, taken after, and noted that the MRI scan reports
showed significant changes. Dr. Kang, however, failed to provide a rationalized medical opinion
supporting causal relationship. The record reflects that appellant has preexisting lumbar disc
conditions disclosed by a previous MRI scan. The prior claim was accepted for lumbar sprain,
aggravation of spondylolisthesis, and aggravation of lumbosacral spondylosis without
myelopathy, and these accepted conditions were deemed to have resolved as of November 2011.
While Dr. Kang noted significant changes between the two MRI scans, he did not opine how
new conditions were due to the accepted incident as opposed to the effects of the preexisting
conditions. The Board has held that a physician’s opinion regarding causal relationship that is
primarily based on appellant’s own representations rather than on objective medical findings is

7

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). 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 factor(s). Id.
8

Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

10

Daniel O. Vasquez, 57 ECAB 559 (2006).

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of limited probative value.11 Additionally, a well-rationalized opinion is particularly warranted
when there is a history of preexisting condition.12
In his February 28, 2014 report, Dr. Kang opined that appellant had an aggravation of his
degenerative lumbar spine disorder with radiculopathy, most probably related to the January 2,
2013 job injury. He rationalized that appellant had no sharp pain associated with his usual daily
activities such as walking, sitting, or standing prior to January 2, 2013 and that his pain level
reached new highs after January 2, 2013 for 10 months. Appellant also complained of radiating
pain and paresthesia to his right hip and right posterior thigh and the MRI scan of lumbar spine
taken after January 14, 2013 showed greater degree of bulging and herniation at the L4-5 and
L5-S1 level. In his December 16, 2015 report, Dr. Kang reiterated that the contents of his prior
report dated February 28, 2014 and added a paragraph on the mechanism of injury. He
continued to opine, as he did in his prior report, that appellant had an aggravation of his
degenerative lumbar spine disorder with radiculopathy, “most likely” related to the January 2,
2013 job injury.
In his reports of February 28, 2014 and December 16, 2015, Dr. Kang presented an
equivocal and speculative opinion that appellant’s medical conditions were “most probably”
related to the January 2, 2013 employment incident. While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.13 Additionally, Dr. Kang offered no objective evidence and rationale to
support that appellant’s condition was causally related to the work injury and not activities of
daily living. He noted that appellant had an increase in his usual activities such as walking,
sitting, and standing in addition to the pain he felt when performing the work duty. However,
activities such as walking, sitting, or standing are elements of daily living and not activities
solely related to appellant’s federal employment. Other than noting that appellant had an
increase in the severity of his pain, Dr. Kang did not explain how appellant’s work incident
exacerbated his underlying lumbar condition. While he noted a greater degree of bulging and
herniation at the affected levels on MRI scan before and after the January 2, 2013 employment
incident, it is unclear how he was able to distinguish appellant’s preexisting lumbar condition
from the aggravating effects of the January 2, 2013 employment incident. Dr. Kang provided no
objective evidence to support that there has been a change in appellant’s baseline condition or
medical rationale to establish that any changes were connected to the January 2, 2013 work
incident. His opinion on causal relationship 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 factor(s).14
While Dr. Kang noted that the January 2, 2013 employment incident “most likely” aggravated
appellant’s preexisting conditions, for the above reasons, he has not adequately explained the

11

C.M., Docket No. 14-0088 (issued April 18, 2014).

12

T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

13

Ricky S. Storms, 52 ECAB 349 (2001).

14

Victor J. Woodhams, supra note 7.

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basis for his opinion on causal relationship. Thus, his opinion is insufficient to establish causal
relationship.
In his June 8, 2015 report, Dr. Kang opined that appellant injured his back at work. He
reported that there were significant differences in MRI scan findings of lumbar spine between the
prior July 9, 2012 MRI scan of lumbar spine and the January 14, 2013 MRI scan of lumbar spine
and the fact that appellant sought medical care right after he felt pain at work while pulling a
post-con to an electric cart. However, Dr. Kang’s general statement on causation does not
constitute rationalized medical opinion evidence linking a medical diagnosis to the accepted
employment incident. He did not provide a specific medical diagnosis indicating that the
condition was either caused or aggravated by the January 2, 2013 incident, nor did he provide an
explanation as to how this aggravation occurred. A mere conclusion without the necessary
rationale explaining how and why the physician believes that a claimed employment incident
resulted in a diagnosed condition is insufficient to meet a claimant’s burden of proof.15
In his December 16, 2015 report, Dr. Kang reiterated the contents of his prior report
dated February 28, 2014 and added a paragraph relative to the mechanism of injury. He
continued to opine, as he did in his prior report, that appellant had a definite aggravation of his
degenerative lumbar spine disorder with radiculopathy, “most likely” related to the January 2,
2013 employment incident. As explained above, opinions that are speculative have no probative
value.16
Dr. Oh provided an assessment of herniated lumbar disc and lumbar degenerative disc
disease in his January and February 2013 reports. While he indicated in his January 7, 2013
report that appellant was seen for increased lower back pain he experienced the past week,
Dr. Oh failed to mention the history of appellant’s January 2, 2013 work injury or provide a
rationalized medical opinion relating the employment incident to the medical diagnosis.17
Additionally, Dr. Oh appears to base his medical diagnosis on the results of a July 9, 2012 MRI
scan, which predates appellant’s work incident. The need for medical reasoning or rationale is
particularly important given the fact that medical evidence of record indicates that appellant had
a preexisting back condition.18 Thus, Dr. Oh’s reports are insufficient to establish his claim.
The other reports of record are of no probative value on the issue of causal relationship.
Dr. Oh’s January 11, 2013 disability status report is also insufficient to discharge appellant’s
burden of proof as it does not address causal relationship.19 The diagnostic testing of record,
including the lumbar MRI scan reports, are not probative to the issue of causal relationship as
15

G.M., Docket No. 14-2057 (issued May 12, 2015).

16

Victor J. Woodhams, supra note 7.

17

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-0237 (issued September 9, 2011).
18

T.M., supra note 12.

19
See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship).

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they do not offer any opinion regarding the cause of an employee’s condition.20 The reports by
the physician assistant and physical therapist are also not probative to the issue of causal
relationship. The Board has held that notes signed by nurses, physical therapists, or physician
assistants are not considered medical evidence as these providers are not considered physicians
under FECA.21
Consequently, appellant has failed to submit medical evidence to establish his traumatic
injury claim. As noted, causal relationship is a medical question that must be established by
probative medical opinion from a physician.22 The physician must accurately describe
appellant’s work duties and explain the pathophysiological process by which these duties would
have caused or aggravated his condition.23 The need for medical reasoning or rationale is
particularly important given the fact that appellant had a preexisting back condition.24
On appeal counsel asserts that Dr. Kang’s reports dated February 28, 2014, June 8 and
December 16, 2015 are sufficient to establish that appellant’s claimed low back condition is
causally related to the January 2, 2013 employment incident. For the above-noted reasons, the
Board finds that the medical evidence of record, including Dr. Kang’s reports, is insufficient to
establish that the diagnosed low back condition is causally related to the accepted employment
incident.
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 his burden of proof to establish that his
claimed low back condition is causally related to the accepted January 2, 2013 employment
incident.

20

Willie M. Miller, 53 ECAB 697 (2002).

21

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).
22

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 7 at 345 (1989).

23

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-0237 (issued September 9, 2011).
24

T.M., supra note 12.

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ORDER
IT IS HEREBY ORDERED THAT the March 11, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2018
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fresno, TX, Employer
__________________________________________

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

Docket No. 09-810
Issued: October 19, 2009

Case Submitted on the Record

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

JURISDICTION
On February 4, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decision dated December 29, 2008 denying her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On November 7, 2008 appellant, then a 43-year-old carrier, filed an occupational disease
claim alleging that she developed right arm and elbow pain as well as a knot on her elbow due to
repetitive motion at work. She first realized that her condition was caused by her employment
on the same day. Appellant did not stop work.

On November 19, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit such evidence. In particular,
the Office requested a physician’s report with an opinion as to whether appellant’s exposure in
her employment contributed to her condition. Appellant did not respond.
In a decision dated December 29, 2008, the Office denied appellant’s claim for
compensation finding that although the claimed events occurred, there was no medical evidence
providing a diagnosis which could be connected to the accepted events.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (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.2
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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.3
ANALYSIS
Appellant alleged that she developed a right arm and elbow condition due to repetitive
motion at work. However, she did not submit any medical evidence to establish that her work
duties caused or aggravated a diagnosed medical condition.
1

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

2

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

2

On November 19, 2008 the Office advised appellant of the medical evidence necessary to
establish her claim and allowed her 30 days to submit such evidence. However, appellant did not
submit any medical evidence prior to the Office’s December 29, 2008 decision. The record does
not contain any medical reports from a physician explaining how appellant’s repetitive work
duties caused or aggravated a right arm or elbow condition. As noted, an appellant’s burden of
proof requires the submission of rationalized medical evidence addressing whether there is a
causal relationship between her diagnosed condition and employment factors. Consequently,
appellant did not provide the medical evidence required to establish a prima facie claim for
compensation.4
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an occupational disease in the performance of duty.5

4

See A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008); Donald W. Wenzel, 56 ECAB
390 (2005).
5

Appellant submitted new evidence on appeal. However, the Board may only review evidence that was in the
record at the time the Office issued its final decision. See 20 C.F.R. § 501.2(c). This decision of the Board does not
preclude appellant from submitting such evidence to the Office as part of a request for reconsideration.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated December 29, 2008 is affirmed.
Issued: October 19, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Albany, NY, Employer
__________________________________________

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

Docket No. 12-552
Issued: August 27, 2012

Case Submitted on the Record

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

JURISDICTION
On January 13, 2012 appellant filed a timely appeal from a December 29, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days elapsed from the most recent merit decision dated July 13, 2011 to the filing of this appeal,
the Board lacks jurisdiction to review the merits of this case.1 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 nonmerit issue.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit decision
was issued on July 13, 2011, the 180-day computation begins July 14, 2011. One hundred and eighty days from
July 14, 2011 was Tuesday, January 10, 2012. As appellant filed his appeal January 13, 2012, the appeal was
untimely filed.
2

5 U.S.C. §§ 8101-8193.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 27, 2011 appellant, then a 48-year-old nursing assistant, filed a traumatic injury
claim alleging that on May 20, 2011 he injured his lower back while restraining a patient who
was aggressive and out of control. No evidence was submitted with the claim.
In a June 1, 2011 letter, OWCP advised appellant of the deficiencies in his claim and
requested that additional factual and medical evidence be submitted within 30 days. This
included a report from a qualified physician which contained a well-rationalized opinion as to
how the reported work incident caused or aggravated a medical condition. Appellant was
advised that nurse practitioners and physician assistants were not considered qualified physicians
under FECA unless the report was countersigned by a physician.
In response to the development letter, OWCP received May 20, 2011 emergency room
notes from Patricia Stanford, a nurse practitioner, Tracey M. McHugh, a nurse, and Richard
Butz, a physicians’ assistant, diagnosing back pain.
In May 25, 2011 medical notes and memorandum cosigned by Dr. Warren M. Wallis, a
clinical psychologist, Mr. Butz stated that appellant presented to the clinic for hyperglycemia.
He noted that appellant was seen in the emergency room for the May 20, 2011 work injury and
that when appellant was seen by occupational health this morning, appellant had an elevated
glucose level and was requested to return to primary care clinic. It was also noted that appellant
was under stress due to a recent robbery and his son being mugged. Mr. Butz assessed low back
pain and provided a note excusing appellant from work until May 27, 2011. He also noted that
appellant’s history was consistent with post-traumatic stress disorder, diabetes and obesity. No
opinion on causal relationship was provided.
By decision dated July 13, 2011, OWCP denied the claim on the grounds the medical
evidence did not establish that the work event caused an injury.
On September 27, 2011 appellant requested reconsideration.
He submitted a
September 12, 2011 statement in which he described the event of May 20, 2011 and the medical
care he received. In support of his claim, appellant submitted a witness statement from Edward
Maloney, associate chief nurse, attesting to the events of May 20, 2011; a September 14, 2011
note from Mr. Butz3; and a duplicative copy of the May 20, 2011 emergency room notes from
Ms. McHugh and Ms. Stanford.
By decision dated December 29, 2011, OWCP denied appellant’s reconsideration request
on the grounds that his request was insufficient to warrant a review of its prior decision. It
further noted that a limited review of the prior decision was not in error.
3

Illegible handwriting appears underneath Mr. Butz’s signature.

2

On appeal, appellant contends that he had submitted medical evidence by a qualified
physician. Specifically, he stated that the May 25, 2011 note was cosigned by Dr. Wallis, a
clinical psychologist, and the September 14, 2011 note was cosigned by Dr. Douglas Durrett.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.4 Section 10.608(b) of OWCP’s regulations
provides that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5 The Board has found that
evidence that repeats or duplicates evidence already in the case record has no evidentiary value.6
ANALYSIS
On September 27, 2011 appellant requested reconsideration of OWCP’s July 13, 2011
decision which denied his claim on the grounds that the medical evidence was insufficient to
establish causal relationship. His request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Appellant did not advance
a relevant legal argument not previously considered by OWCP. He is not entitled to a review of
the merits of his claim based on the first and second above-noted requirements under section
10.606(b)(2).
Appellant also did not submit relevant and pertinent new evidence not previously
considered by OWCP. In support of his claim, he submitted a witness statement from
Mr. Maloney attesting to the events of May 20, 2011. It was accepted that the incident occurred
as alleged; thus, this evidence is not relevant to the underlying issue of whether the medical
component of fact of injury was established. Appellant also submitted a new note dated
September 14, 2011 from Mr. Butz and a duplicative copy of the May 20, 2011 emergency room
notes signed by nurses. Notes from nurses and physician assistants are of no probative value as
nurses and physician assistants are not considered to be physicians within the meaning of FECA;
thus, this evidence is not sufficient to warrant merit review.7 Furthermore, the May 20, 2011
emergency room notes have been previously reviewed by OWCP. As the May 20, 2011
emergency room notes repeat evidence already in the case record, they are duplicative and do not
4

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141 (2007).

5

Id. at § 10.608(b); K.H., 59 ECAB 495 (2008).

6

See Daniel Deparini, 44 ECAB 657 (1993).

7

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law).

3

constitute relevant and pertinent new evidence. Therefore, appellant has not established a basis
for reopening his case.8
The evidence submitted by appellant on reconsideration did not show that OWCP
erroneously applied or interpreted a specific point of law; advance a relevant legal argument not
previously considered or constitute relevant and pertinent new evidence not previously
considered by OWCP. As appellant did not meet any of the necessary regulatory requirements,
the Board finds that he is not entitled to further merit review.9
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal, appellant asserts that the medical evidence, in particular the May 25, 2011
note and the September 14, 2011 note, were signed by qualified physicians. Regarding the
September 14, 2011 note, the writing below Mr. Butz’s signature is illegible. The Board has
held that a medical report may not be considered as probative medical evidence if there is no
indication that the person completing the report qualifies as a physician as defined in 5 U.S.C.
§ 8101(2) and reports lacking proper identification do not constitute probative medical
evidence.10 As the writing below Mr. Butz’s signature is illegible, this note is not relevant to the
underlying medical issue as the note lacks proper identification. The May 25, 2011 note from
Mr. Butz was cosigned by Dr. Wallis, a clinical psychologist, but this report was previously
considered by OWCP and, thus, is not a basis for reopening the claim.11 The Board only has
jurisdiction over whether OWCP properly denied merit review of the claim. Appellant did not
submit any evidence or argument in support of his reconsideration request that warrants a
reopening of his claim for merit review under 20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

8

See D.K., 59 ECAB 141 (2007).

9

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).
10

C.B., Docket No. 09-2027 (issued May 12, 2010).

11

See supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the December 29, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 27, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-152
Issued: July 12, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On October 25, 2010 appellant filed a timely appeal from a September 29, 2010 decision
of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. The Board docketed the appeal as No. 11-152.1
This case has previously been before the Board. By decision dated August 7, 2003, the
Board affirmed a March 29, 2002 OWCP decision that found that appellant did not establish that
he had any disability on or after February 8, 2002 because the evidence did not support that his
employment injury had worsened such that a March 27, 2001 wage-earning capacity
determination that reduced his compensation to zero should be modified.2 In a January 15, 2010
decision, the Board found that appellant did not meet his burden of proof to establish that the
March 27, 2001 wage-earning capacity decision should be modified.3

1

On December 6, 1999 appellant, then a 61-year-old recycling specialist, sustained an employment-related
lumbar strain and displacement of intervertebral disc.
2

Docket No. 02-1918 (issued August 7. 2003).

3

Docket No. 09-708 (issued January 15, 2010).

The Board has reviewed the case record and notes that on July 29, 2010 appellant
requested reconsideration. Appellant attached a July 13, 2010 report from Dr. Russell L. Ingram,
an attending Board-certified in family practitioner, who diagnosed lumbar degenerative disc
disease with herniation causing right leg radiculopathy and noted that appellant continued to
have low back pain and radicular right leg pain. Dr. Ingram advised that appellant attempted to
work “this year” but could not for the 25 hours he was expected to and could not work at all at
the present. By decision dated September 29, 2010, OWCP denied appellant’s request for merit
review on the grounds that Dr. Ingram’s report was cumulative and repetitious.
As noted above, OWCP issued a formal decision on appellant’s wage-earning capacity on
March 27, 2001, prior to the time he requested reconsideration on July 29, 2010. Board
precedent and OWCP’s procedures direct the claims examiner to consider the criteria for
modification when a claimant requests resumption of compensation for total wage loss.4 While
appellant used the term reconsideration in his July 29, 2010 request, he submitted medical
evidence in which his physician asserted that appellant’s condition had worsened.5 The Board
finds that OWCP should have adjudicated the issue of modification of the wage-earning capacity
determination.6 The Board will therefore remand the case to OWCP for proper adjudication, to
be followed by an appropriate merit decision to preserve appellant’s appeal rights.

4

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004); Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.9(a)
(December 1995) (if a formal decision on loss of wage-earning capacity is issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss, in which instance OWCP will need to
evaluate the request according to the customary criteria for modifying a formal loss of wage-earning capacity
determination).
5

Once the wage-earning capacity of an injured employee is determined, a modification of such determination is
not warranted unless there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated, or the original determination was, in fact, erroneous.
Stanley B. Plotkin, 51 ECAB 700 (2000); see Federal (FECA) Procedure Manual, id. at Chapter 2.814.11
(June 1996).
6

F.B., Docket No. 09-99 (issued July 21, 2010).

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IT IS HEREBY ORDERED THAT the September 29, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: July 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, NEWBURG
STATION, Cleveland, OH, Employer
__________________________________________

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

Docket No. 19-1066
Issued: January 29, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 15, 2019 appellant, through counsel, filed a timely appeal from a March 12, 2019
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 permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On September 19, 2016 appellant, then a 21-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging on September 16, 2016 she injured her back and chest in a
motor vehicle accident (MVA) while in the performance of duty. By decision dated November 23,
2016, OWCP accepted the claim for sprain of the lumbar spine, low back strain, and bilateral knee
contusions. Appellant returned to modified-duty work on January 21, 2017.
On February 3, 2017 appellant’s physician, Dr. Catherine Watkins Campbell, Boardcertified in occupational medicine, released her to full-duty work. She reported that appellant
exhibited a normal gait, normal lumbar lordosis, and no muscle spasm on palpation. Dr. Campbell
found that she had negative straight leg raising, no soft tissue or spinal tenderness, and no trigger
points. She also found a negative Patrick’s test bilaterally. Dr. Campbell attributed appellant’s
mechanical back pain issues to her scoliosis and determined that the injuries from the
September 16, 2016 work-related MVA were no longer an issue. In a note dated March 28, 2017,
she found that appellant had reached maximum medical improvement (MMI). Dr. Campbell noted
that due to appellant’s scoliosis she had mechanical back pain issues which had increased her
healing time.
On April 27, 2017 appellant filed a schedule award claim (Form CA-7).
In a May 22, 2017 development letter, OWCP advised appellant of the deficiencies of her
claim, and requested medical evidence containing a detailed description of her permanent
impairment specific to the accepted work-related conditions, a date of MMI, a final rating of
permanent impairment, and a discussion of the rationale for calculation of the impairment under
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (A.M.A., Guides)3 supporting appellant’s schedule award claim. It afforded her 30
days to respond.
In an October 31, 2017 report, Dr. Campbell listed appellant’s accepted conditions and
noted her history of injury on September 16, 2016. She provided results on physical examination
including range of motion of the bilateral knees of 135 degrees of flexion, and 3 degrees of
extension in the left knee, with -2 degrees of extension in the right knee which were not ratable
under Table 16-23, page 549 of the A.M.A., Guides. Dr. Campbell found no swelling, effusion,
or tenderness in either knee. She reported normal reflexes and motor examination in the lower
extremities as well as negative straight leg raising and negative Patrick’s tests, bilaterally.
Dr. Campbell reported that appellant was at MMI and found that lumbosacral strain/sprains were
not ratable conditions and that appellant had no residuals from her bilateral knee contusions. She

3

A.M.A., Guides (6th ed. 2009).

2

concluded that in accordance with the A.M.A., Guides appellant had zero percent permanent
impairment of the bilateral lower extremities.
On April 30, 2018 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving as
an OWCP district medical adviser (DMA), reviewed a statement of accepted facts and the medical
evidence of record. He concurred with Dr. Campbell’s assessment that appellant had reached
MMI and that she had zero percent permanent impairment of the bilateral lower extremities. The
DMA also explained that regarding appellant’s accepted lumbar condition, appellant did not have
any sensory or motor deficit, and therefore she did not have a ratable permanent impairment under
The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition
(July/August 2009) (The Guides Newsletter), proposed Table 2: Spinal Nerve Impairment: Lower
Extremity Impairments. In a report dated August 2, 2018, the DMA clarified that August 31, 2017,
the date Dr. Campbell examined appellant, was the date of MMI.
By decision dated August 7, 2018, OWCP denied appellant’s schedule award claim finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body.
On August 13, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
During the hearing, held on January 15, 2019, appellant testified that she continued to
experience knee pain and locking. She also reported numbness in her knee. OWCP’s hearing
representative afforded appellant 30 days to submit medical evidence. No further evidence was
received.
By decision dated March 12, 2019, OWCP’s hearing representative affirmed the August 7,
2018 decision, finding that there was no medical evidence of record establishing permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

3

the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury.8 OWCP’s procedures provide
that, to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred, describes the impairment in sufficient detail so that it can be visualized on review, and
computes the percentage of impairment in accordance with the A.M.A., Guides.9
Neither FECA nor its regulations provide for a schedule award for impairment to the back
or to the body as a whole.10 Furthermore, the back is specifically excluded from the definition of
organ under FECA.11 The sixth edition of the A.M.A., Guides does not provide a separate
mechanism for rating spinal nerve injuries as impairments of the extremities. Recognizing that
FECA allows ratings for extremities and precludes ratings for the spine, The Guides Newsletter
offers an approach to rating spinal nerve impairments consistent with sixth edition methodology.
For peripheral nerve impairments to the upper or lower extremities resulting from spinal injuries,
OWCP’s procedures indicate that The Guides Newsletter is to be applied.12 The Board has
recognized the adoption of this methodology for rating extremity impairment, including the use of
The Guides Newsletter, as proper in order to provide a uniform standard applicable to each
claimant for a schedule award for extremity impairment originating in the spine.13
The claimant has the burden of proof to establish that the condition for which a schedule
award is sought is causally related to his or her federal employment.14

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).
8

D.F., Docket No. 18-1337 (issued February 11, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).

9

Supra note 7 at Chapter 2.808.5 (March 2017); see also B.J., Docket No. 19-0960 (issued October 7, 2019).

10

K.Y., Docket No. 18-0730 (issued August 21, 2019); L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59
ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).
11
See 5 U.S.C. § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziani, 48
ECAB 572 (1997).
12

Supra note 7 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

13

E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

14

G.S., supra note 11; Veronica Williams, 56 ECAB 367 (2005).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In her October 31, 2017 report, appellant’s attending physician, Dr. Campbell, reported
that appellant had normal reflexes and motor examination in the lower extremities as well as
negative straight leg raising and negative Patrick’s tests, bilaterally. She opined that appellant had
reached maximum medical improvement, and that appellant had no residuals from her bilateral
knee contusions and zero percent permanent impairment of her knees. Dr. Campbell also indicated
that appellant was at MMI and found that appellant’s lumbosacral strain/sprains were not ratable
conditions.15 She explained that appellant had normal sensory and motor lower extremity
examination findings. Dr. Campbell’s report negates permanent impairment and is therefore
insufficient to establish appellant’s schedule award claim.16
In accordance with its procedures, OWCP properly routed the case record to its DMA who
concurred with Dr. Campbell’s findings. The Board finds that the DMA applied the appropriate
tables and grading schemes of the sixth edition of the A.M.A., Guides to Dr. Campbell’s clinical
findings. The DMA properly concluded that there is no medical evidence of record utilizing the
appropriate tables of the sixth edition of the A.M.A., Guides demonstrating a percentage of
permanent impairment of appellant’s knees. He also properly explained that the evidence of record
did not establish a sensory or motor deficit of appellant’s lumbar spine, resulting in a lower
extremity permanent impairment, pursuant to The Guides Newsletter.17 The Board finds that the
DMA in this case properly applied the standards of the A.M.A., Guides and OWCP properly relied
on his assessment of zero percent permanent impairment of the right and left lower extremity.
Appellant has submitted no other current medical evidence in conformance with the sixth
edition of the A.M.A., Guides, or The Guides Newsletter, addressing how she has a ratable
permanent impairment of a scheduled body member. Accordingly, the Board finds that she has
not established her schedule award claim.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

15

F.T., Docket No. 16-1326 (issued March 12, 2018).

16

L.G., Docket No. 16-0792 (issued June 24, 2016) (the Board held that when a medical report finds no permanent
impairment it is insufficient to establish a claim for a schedule award).
17

T.K., Docket No. 19-1222 (issued December 2, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the March 12, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 29, 2020
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.Y., Appellant
and
U.S. POSTAL SERVICE, PROCESSING
& DELIVERY CENTER, Kansas City, MO,
Employer
__________________________________________

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

Docket No. 09-1376
Issued: January 22, 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 May 5, 2009 appellant, through counsel, filed a timely appeal from the February 2,
2009 nonmerit decision of the Office of Workers’ Compensation Programs that denied his
request for reconsideration as untimely filed and failing to establish clear evidence of error. The
most recent merit decision of record is an October 1, 2007 decision denying compensation for
intermittent periods from August 1 through November 30, 2005. Because more than one year
elapsed between the last merit decision and the filing of this appeal, the Board lacks jurisdiction
to review the merits of this case, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for
reconsideration on the grounds that his request was untimely filed and failed to demonstrate clear
evidence of error.
Appellant, through his attorney, contends that the Office’s denial was contrary to fact and
law.

FACTUAL HISTORY
On July 7, 2005 appellant, then a 48-year-old clerk, filed a traumatic injury claim
alleging that on July 1, 2005 he injured his back. Dr. Cedric B. Fortune, a Board-certified family
practitioner, diagnosed lumbar strain and found that appellant was totally disabled from July 6
through 18, 2005, but could resume regular duties on July 20, 2005. By letter dated
November 18, 2005, the Office accepted his claim for lumbar strain.
In a letter dated May 8, 2006, Dr. W. Cheng, a Board-certified internist, advised that
appellant was disabled from July 20, 2005 through February 13, 2006 due to low back pain and
degenerative changes in his back. On a May 22, 2006 he opined that appellant’s low back pain
was a natural consequence of his discogenic disease, which likely first started after a workrelated motor vehicle accident on March 1, 1996. Dr. Cheng opined that the chronic low back
pain was due to the heavy nature of his work and a worn out back.
On December 12, 2006 appellant filed claims for wage-loss compensation for intermittent
periods from July 9 through November 30, 2005.
In a February 28, 2007 medical report, Dr. Cheng discussed appellant’s motor vehicle
accident. He also noted that on July 6, 2005 appellant was transferred to a position that required
heavy repetitive lifting and caused severe back pain. Dr. Cheng opined that appellant’s low back
pain was a natural consequence of his July 6, 2005 work injury and not just a progression of his
discogenic disease, which was quiescent until his second injury. He stated that appellant has
been disabled from July 20, 2005 through February 21, 2007.
By decision dated April 26, 2007, the Office denied appellant’s claim for compensation
from August 1 through November 30, 2005. It found that the medical evidence did not establish
disability causally related to the accepted lumbar strain of July 6, 2005. The Office noted that
appellant received continuation of pay for the period July 9, 2005 through 19, 2005.
Appellant requested review of the written record. In an October 1, 2007 decision, an
Office hearing representative affirmed the April 26, 2007 decision, finding that appellant had not
met his burden of proof to establish that he was disabled for work.
In a pain management report dated September 24, 2008, Dr. Curtis D. Johnson, a Boardcertified anesthesiologist, stated that he saw appellant on that date and that he was having low
back pain, which had been fairly consistent since 2005 after a work-related injury. In an
October 8, 2008 report, he noted that he gave appellant a lumbar epidural steroid injection.
On October 3, 2008 appellant underwent a magnetic resonance imaging (MRI) scan of
the lumbar spine which was interpreted as showing a small disc protrusion without impingement
at L5-S1; right-sided facet hypertrophy at L5-S1; narrowing of left neural foramina due to disc
bulging at L4-5 and narrowing of both neural foramina due to broad-based disc bulge at L3-4.
In a November 4, 2008 note, Dr. James Scowcroft, a Board-certified anesthesiologist,
listed an impression of lumbar facet syndrome and degenerative disc disease.

2

On November 29, 2008 appellant requested reconsideration. He contended that he only
received $50.00 in compensation for his job injury; that the employing establishment terminated
his employment and that it never honored his physicians’ recommendations for time from work.
The employing establishment responded on December 23, 2008 asserting that it had
accommodated appellant’s restrictions. Appellant returned to work on July 20, 2005 at full duty
and received continuation of pay from July 9 through 19, 2005.
In a January 19, 2009 note, Dr. Scowcroft indicated that he administered diagnostic
medial branch blocks on appellant.
By decision dated February 2, 2009, the Office denied appellant’s request for
reconsideration as it was not timely filed and did not present clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.1 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted the Office under section 8128(a) of the Federal Employees’
Compensation Act.2
The Office, 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, the
Office must nevertheless undertake a limited review to determine whether the application
establishes clear evidence of error.3 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of
error on the part of the Office.4
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.5 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.6 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
1

20 C.F.R. § 10.607(a).

2

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

3

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

4

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004). Office procedure further provides, the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that the Office made an error (for
example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
5

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

6

See Leona N. Travis, 43 ECAB 227, 240 (1991).

3

clear evidence of error.7 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.8 This entails a limited review by the Office 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 the Office.9 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of the Office decision.10
ANALYSIS
As noted the most resent merit decision was the October 1, 2007 decision by the hearing
representative denying appellant’s claim for intermittent periods of disability from August 1
through November 30, 2005 due to his July 6, 2005 lumber strain. Appellant filed his request for
reconsideration on November 29, 2008. As this request was filed over one year after the Office’s
October 1, 2007 decision, the request was not timely filed.
The Office properly reviewed appellant’s request under the clear evidence of error
standard and determined that he failed to establish clear evidence of error. Appellant did not
submit any medical evidence with his request for reconsideration. The evidence submitted since
the hearing representative’s October 1, 2007 decision is not sufficient to establish clear evidence
of error. Appellant’s claim for compensation was denied for intermittent periods from August 1
and November 30, 2005. Dr. Scowcroft discussed his treatment of appellant in November 2008
and January 19, 2009; he did not address appellant’s disability in 2005. Dr. Johnson’s statement
that appellant’s low back pain had been consistent since his 2005 work injury does not establish
disability in 2005 and is not sufficient to show clear evidence of error. The October 3, 2008 MRI
scan does not address disability or appellant’s condition in 2005. The evidence submitted is not
probative as it does not address the issue on which the claim was denied.
Appellant’s request for reconsideration failed to demonstrate clear evidence of error in
the Office’s most recent decision. The Board finds that the Office properly refused to reopen his
case for a review on the merits. The Board will affirm the February 2, 2009 decision.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of the claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

7

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

8

See Leona D. Travis, supra note 6.

9

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

10

Leon D. Faidley, Jr., supra note 2.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 2, 2009 is affirmed.
Issued: January 22, 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
__________________________________________
A.W., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-0199
Issued: September 1, 2017

Case Submitted on the Record

ORDER GRANTING PETITION FOR RECONSIDERATION
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
The Board issued its decision in the above-entitled matter on September 16, 2015.1 The
Board affirmed a September 24, 2013 merit decision of the Office of Workers’ Compensation
Programs (OWCP), which denied appellant’s claim for a schedule award. The Board found that
appellant had not sustained any permanent impairment causally related to his accepted lumbar
and thoracic conditions.
On October 13, 2015 appellant timely requested that the Board reconsider its
September 16, 2015 decision.2 He noted, inter alia, that OWCP had expanded his claim to
include herniated discs. Appellant also argued that the Board failed to consider a January 13,
2012 medical report from Dr. John J. Walsh Jr., a Board-certified orthopedic surgeon and OWCP
1

Richard J. Daschbach, Chief Judge, participated in the preparation of the original decision, but was no longer a
member of the Board effective May 16, 2014. Similarly, James A. Haynes, Alternate Judge, also participated in the
preparation of the original decision, but was no longer a member of the Board effective November 16, 2015.
Neither individual participated in the preparation of this order.
2

Appellant or the Director of OWCP may file a petition for reconsideration of a decision or order issued by the
Board within 30 days of the date of issuance, unless another time period is specified in the Board’s order. 20 C.F.R.
§ 501.7.

referral physician. On November 10, 2015 the Director filed an answer to the petition for
reconsideration, arguing that appellant had not cited any error of fact or law and his petition
should therefore be denied. In a November 16, 2015 response, appellant reiterated that
Dr. Walsh’s report had been omitted. He also noted that in 2012 OWCP expanded his claim to
include herniated discs, and the Board’s failure to acknowledge all of his accepted conditions
represented an error in fact.
In its September 16, 2015 decision, the Board identified appellant’s accepted conditions
as thoracic and lumbar strain/sprain. Part of the Board’s rationale for affirming OWCP’s
September 24, 2013 denial of a schedule award was that appellant’s treating physician had based
his left lower extremity impairment rating on diagnoses of herniated thoracic and lumbar discs,
“which [were] not accepted as causally related to the employment injury.” However, on
reconsideration, appellant correctly noted that in February 2012 OWCP had expanded his claim
to include, inter alia, thoracic and lumbar intervertebral disc displacement.3 Because appellant
has identified a pertinent factual error with respect to the September 16, 2015 decision, the Board
will grant the petition for reconsideration. Accordingly, the Board will issue a new decision and
order regarding appellant’s claimed entitlement to a schedule award.
IT IS HEREBY ORDERED THAT the petition for reconsideration is granted.
Issued: September 1, 2017
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3

OWCP’s February 15, 2012 correspondence to appellant advised that his claim had been expanded. The list of
all accepted conditions included thoracic and lumbar region back sprain(s), cervical, thoracic and lumbar
intervertebral disc displacement(s) without myelopathy, and thoracic or lumbosacral neuritis or radiculitis. OWCP
also noted that its decision to expand the claim was based on Dr. Walsh’s recent second opinion examination.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, CHANG HO
STATION, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 11-1819
Issued: February 21, 2012

Case Submitted on the Record

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

JURISDICTION
On August 2, 2011 appellant filed an appeal of a February 18, 2011 nonmerit 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 nonmerit issue in this case. Because more than 180 days has elapsed from issuance of the
last merit decision on September 10, 2009 to the filing of this appeal on August 2, 2011, the
Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of her claim on the grounds that her request was untimely filed and failed to establish
clear evidence of error.
On appeal, appellant discussed the history of pain in her hands and wrist and its relation
to her federal employment.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 19, 2009 appellant, then a 58-year-old letter carrier, filed an occupational disease
claim alleging that as a result of over 20 years of repetitive motion in both her hands she
developed carpal tunnel syndrome. She submitted progress reports by her treating physicians,
including Dr. Thai T. Do, a Board-certified internist, who noted that appellant developed pain in
both hands as a result of her work as a letter carrier, and that he was treating her for bilateral
wrist tendinitis and ulnar nerve neuropathy. Dr. Do opined, “More likely than not, based on the
available history, objective findings and diagnosis, it is my medical opinion that her condition is
caused by repetitive casing and grasping, flexion and extension as well as ulnar deviation of the
wrist.
By decision dated September 10, 2009, OWCP denied appellant’s claim as the medical
documentation was not sufficient to establish that she sustained a medical condition connected to
the claimed occupational exposures. Appellant had a prior claim for carpal tunnel syndrome that
was filed in 2006 that had been denied, and it did not appear that her physicians had an accurate
history with regard to the prior claim.
On November 22, 2010 appellant requested reconsideration and submitted medical
evidence including a report by Dr. Do, dated September 4, 2009, that noted continued treatment
for appellant’s complaints of bilateral wrist pain. She underwent a nerve conduction study on
October 18, 2010 that was interpreted by Dr. Steve Y. Huang, a Board-certified radiologist, as
showing no electrodiagnostic evidence of bilateral ulnar neuropathies across the wrist or median
neuropathies. In reports dated November 24 and December 17, 2010 and January 14, 2011,
Dr. Huang diagnosed tendinitis of the wrist and paresthesia of the upper limb. He stated that,
after careful review of all available evidence, it was his opinion that appellant’s condition was
more likely than not caused or aggravated by factors of her employment.
By decision dated February 18, 2011, OWCP denied appellant’s request for
reconsideration as it was untimely filed and did not establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file her application for review within one year of the date of that decision.2 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.3
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
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.4 OWCP regulations and procedure provide that it will reopen a claimant’s
2

20 C.F.R. § 10.607(a).

3

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

4

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

2

case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review establishes clear evidence of error on the
part of OWCP.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.6 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.7 Evidence which 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 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.10 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.11
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. The most recent OWCP merit decision is dated September 10, 2009.
Appellant’s request for reconsideration was dated November 22, 2010, more than one year after
the merit decision. Accordingly, her request for reconsideration was not timely filed.
The Board further finds that appellant failed to establish clear evidence of error. In order
to establish clear evidence of error, a claimant must submit evidence that is positive, precise and
explicit and must manifest on its face that OWCP committed an error.12 Appellant has not
submitted such evidence. The September 4, 2009 report of Dr. Do is similar to his prior reports
and does not contain any new evidence or rationale sufficient to establish clear evidence of error.
5

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). OWCP procedures further provide: 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 sufficient to establish clear evidence of error. Id. at Chapter 2.1602.3c
6

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

7

See Leona N. Travis, 43 ECAB 227, 240 (1991).

8

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

9

See Leona D. Travis, supra note 7.

10

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

11

Leon D. Faidley, Jr., supra note 3.

12

20 C.F.R. § 10.607(a); A.F., Docket No. 11-1297 (issued December 20, 2011).

3

The reports of Dr. Huang are similar in content to the prior reports of Dr. Do. Furthermore, his
conclusion that appellant’s condition is more likely than not caused or aggravated by factors of
employment is speculative in nature and does not provide medical rationale supporting his
conclusion. Therefore, this report does not establish clear evidence of error.
The term clear evidence of error is intended to represent a difficult standard. The
evidence submitted by appellant is not so positive, precise and explicit that it manifests on its
face that OWCP committed an error. Thus, she has not submitted evidence on reconsideration
that meets the standard of establishing clear evidence of error and OWCP properly denied her
request for reconsideration.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of her claim on the grounds that her request was untimely filed and failed to demonstrate
clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 18, 2011 is affirmed.
Issued: February 21, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
U.S. POSTAL SERVICE, NEW JERSEY
INTERNATIONAL & BULK MAIL CENTER,
Jersey City, NJ, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-393
Issued: September 14, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 30, 2009 appellant, through his representative, filed a timely appeal from
the July 8, 2009 merit decision of the Office of Workers’ Compensation Programs, which denied
his recurrence claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on September 17, 2007
causally related to his March 4, 2003 employment injury.
FACTUAL HISTORY
On March 4, 2003 appellant, then a 50-year-old tractor-trailer operator, sustained an
injury in the performance of duty when he slipped on ice and grease and twisted his right knee.
The Office accepted his claim for right knee sprain. Appellant underwent right knee arthroscopy
with partial meniscectomies, abrasion plasty and synovectomy. The Office paid compensation

for temporary total disability on the periodic rolls. In 2005 appellant returned to full-time work
in a limited-duty position.
On February 20, 2008 appellant filed a claim for compensation alleging that he sustained
a recurrence of disability on September 17, 2007 as a result of his March 4, 2003 employment
injury. He alleged a spontaneous increase in symptoms. The employer controverted appellant’s
claim, stating:
“On 9/17/07 (same date of recurrence) employee complained of chest pain and
was taken to the emergency room via ambulance (3956 medical record attached).
Employee was working in a limited duty capacity for his accepted knee condition
until 9/17/07 when he experienced non-job related chest pains.”
PS Form 3956, dated September 17, 2007, indicated that appellant was taken to the
emergency room via emergency medical services with a complaint of chest pain.
Dr. Michael Cushner, a Board-certified orthopedic surgeon, treated appellant since
March 2003. On November 19, 2008 he noted that appellant dealt with trucks “and hitch use on
these trucks on a slippery surface,” but he did not describe the incident on March 4, 2003.
Dr. Cushner explained that the accident exacerbated a previously asymptomatic underlying
arthritis and caused damage to the meniscus and loosened cartilage, for which appellant
underwent surgery.
Dr. Cushner noted appellant’s difficulty returning to work due to multiple medical
reasons, but he did not elaborate. He noted that the long commute was very difficult for
appellant. “The patient’s commute ranges from two and a half to four hours with long periods of
sitting in the car with increased stress across the knee, making it swell and causes pain and
discomfort.” Dr. Cushner stated that appellant would benefit from a shorter commute.
Dr. Cushner found that appellant had intermittent exacerbations and was limited by his
long commute, which put increased stress across the knee requiring him to be out of work since
accommodations were not made. “I believe there is a direct causal relationship between the
patient’s injury on March 4, 2003 and the subsequent condition he has had in his knee. There is
an indirect association in that his need for medication as well as his immobility and stress across
his body may have affected other organ systems but these have been evaluated by those
specialties including his internal medical doctor and cardiologist.”
Appellant’s representative submitted Dr. Cushner’s report as part of a “Submission in
Support of a Recurrence of Federal Employment Related Total Disability.”
On July 8, 2009 the Office issued a final decision denying appellant’s recurrence claim.
It noted that Dr. Cushner did not mention September 17, 2007 and did not explain why appellant
suddenly could no longer work his limited-duty position beginning that date because of the
claimed worsening of his accepted right knee sprain. The Office found Dr. Cushner’s opinion to

2

be of diminished probative value. It noted nothing in his notes before or immediately after
September 17, 2007 that showed a change in objective findings.1
The Office also noted that the only medical evidence of appellant’s work stoppage on
September 17, 2007 indicated that he had chest pains and the first time a subsequent medical
note mentioned his right knee was on January 22, 2008, four months after the claimed
recurrence. It found no evidence to explain how appellant’s sudden onset of chest pain on
September 17, 2007 was related to the March 4, 2003 employment injury.
On appeal appellant’s representative argues that his submission in support of a recurrence
of federal employment-related total disability establishes that appellant’s total disability
beginning September 17, 2007 was causally related to the injury and conditions sustained as a
result of the March 4, 2003 employment injury.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.2
“Disability” means 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.3
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 resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.4
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 of record
establishes that he can perform the limited-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability and
to show that he cannot perform such limited-duty work. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature and
extent of the limited-duty job requirements.5

1

Dr. Cushner’s August 28, 2007 note indicated that appellant was evaluated for his right knee internal
derangement: “As a result of that evaluation, the patient may return to work August 28, 2007 to October 30, 2007
with restrictions.”
2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f).

4

Id. at § 10.5(x).

5

Terry R. Hedman, 38 ECAB 222, 227 (1986).

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ANALYSIS
Appellant stopped work in his limited-duty position on September 17, 2007 and filed a
claim for compensation. He therefore has the burden to establish that his total disability
beginning that date was causally related to a change in the nature and extent of his injury-related
condition.6
To support his claim, appellant submitted the November 19, 2008 report of his orthopedic
surgeon, Dr. Cushner, but there are a number of problems with this report. Dr. Cushner never
acknowledged appellant’s work stoppage on September 17, 2007, which is the crux of
appellant’s recurrence claim. He noted that appellant worked with trucks and hitches but never
specifically described how appellant injured himself on March 4, 2003. Dr. Cushner never
explained how appellant’s right knee sprain, or residuals of the authorized surgery,
spontaneously changed or progressed such that appellant could no longer work his limited-duty
job on September 17, 2007. He did not attempt to reconcile the evidence showing that appellant
stopped work on September 17, 2007 because he was having chest pain and had to be taken to
the hospital emergency room; and he did not show how his evaluations of appellant’s right knee
prior to September 17, 2007 demonstrated a worsening of the accepted right knee sprain or
residuals of the authorized surgery. Therefore, in a number of significant respects, Dr. Cushner’s
November 19, 2008 report is not supportive of appellant’s recurrence claim. It is not directed to
the issue raised by appellant’s claim. It is not based on a complete factual and medical
background7 and it is not well rationalized.8 The Board finds that this evidence carries little if
any probative weight on the issue of recurrence and is insufficient to discharge appellant’s
burden of proof. The Board will therefore affirm the Office’s July 8, 2009 decision denying his
recurrence claim.
On appeal, appellant’s representative argues that Dr. Cushner’s report establishes that
appellant’s total disability beginning September 17, 2007 was causally related to the injury and
conditions sustained as a result of the March 4, 2003 employment injury, but, as the Board has
explained, Dr. Cushner did not mention appellant’s work stoppage on September 17, 2007.
Instead, he indicated that appellant’s accident in March 2003 exacerbated an underlying arthritis,
which the Office does not accept. Dr. Cushner attributed a worsening of appellant’s knee
condition to undisclosed intermittent exacerbations and to his long commute, but that is more
indicative of an intervening injury than it is any spontaneous change in the accepted medical
condition. It may be, as he reported, that there is a direct causal relationship between appellant’s
March 4, 2003 injury and the subsequent condition of his knee, but there is no evidence that
appellant stopped work on September 17, 2007 because of a change in the nature and extent of
his injury-related condition. It appears that appellant stopped work because of chest pain.
6

Appellant does not argue a change in the nature and extent of the limited-duty job requirements.

7

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
8

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954) (medical conclusions
unsupported by rationale are of little probative value).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a recurrence of disability on September 17, 2007 causally related to his right knee
injury on March 4, 2003. The evidence does not support his claim.
ORDER
IT IS HEREBY ORDERED THAT the July 8, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 14, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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