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

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

Docket No. 13-1009
Issued: October 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 20, 2013 appellant filed a timely appeal from a March 5, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied appellant’s claim for
continuation of pay. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant is entitled to continuation of pay for her July 22, 2011
employment injury.
FACTUAL HISTORY
On July 3, 2012 appellant, then a 58-year-old window clerk/dispatch, filed a traumatic
injury claim alleging that on July 22, 2011, a metal cage gate fell on her right ankle fracturing
her ankle bone. She did not stop work. A witness statement from Aaron Kirby, a coworker,
1

5 U.S.C. §§ 8101-8193.

dated July 9, 2012, noted that a cage gate fell on top of appellant’s foot and ankle. The
employing establishment controverted appellant’s claim for continuation of pay on the grounds
that she did not submit a CA-1 claim form (Report of Traumatic Injury) within 30 days of the
July 22, 2011 injury.
Appellant submitted reports from Dr. John V. Foley, a Board-certified family
practitioner, from June 21 to September 20, 2011, for right thumb based pain and right ankle
pain. She reported a right ankle injury when she was in her late teens while skiing. Dr. Foley
diagnosed right thumb basilar joint disease and right ankle swelling of unknown etiology,
possibly arthritic based. Also submitted was a July 3, 2012 report from Dr. Rachel Hurlburt, an
osteopath, who returned appellant to work.
On August 2, 2012 OWCP advised appellant of the type of factual and medical evidence
needed to establish her claim. Appellant submitted an August 25, 2012 letter and noted that on
July 22, 2011 a metal cage gate fell onto her right ankle. She indicated that on the date of the
accident her postmaster left early but a mail truck driver witnessed the event and made a
statement. Appellant sought treatment from Drs. Foley and Hurlburt and was tested for gout.
She indicated that perhaps her doctors did not understand the injury she was reporting so no
additional treatment for her ankle was rendered. Appellant was treated in February 2012 and an
x-ray revealed a fractured ankle and Dr. Foley advised that she would need right ankle surgery.
In an August 25, 2012 OWCP questionnaire, appellant indicated that she waited almost a full
year before filing a claim because she did not know what was wrong until she remembered that
in August 2011 a gate fell on her right ankle at work. OWCP advised that in claim number
xxxxxx818 she was treated for right ankle swelling and degenerative joint disease but did not
mention a July 22, 2011 injury. Appellant indicated that she had forgotten what happened to her
right ankle until August 2011 when the pain was all consuming and she could not think straight.
She reported that immediately after the injury she experienced swelling, bruising, pain and she
sought treatment from her doctor.
In a decision dated September 27, 2012, OWCP denied appellant’s claim for
compensation on the grounds that the medical evidence did not demonstrate that the claimed
medical condition was causally related to the established work-related events.
On December 11, 2012 appellant requested reconsideration. In a December 11, 2012
statement, she indicated that the accident in which she broke her ankle occurred 10 days after her
claim of July 22, 2011. Appellant noted that she should have filed a new claim for the fractured
ankle but x-rays revealing the fracture were not taken until February 2012. She advised that she
filed her claim late because she was unaware that her ankle was broken. In a November 8, 2012
statement, appellant indicated that she underwent surgery on October 1, 2012 on her right ankle
and had been off work since that time and used all her sick and annual leave. She submitted a
July 3, 2012 report from Dr. Hurlburt who treated her for an ankle fracture related to a workers’
compensation case. Also submitted was an October 9, 2012 report from Dr. Foley who treated
her for a left ankle medial malleolar nonunion secondary to a fracture. Dr. Foley opined that this
injury was an acute traumatic injury occurring in the industrial environment.

2

By decision dated March 5, 2013, OWCP vacated the decision dated September 27, 2012,
finding that the evidence established the causal relationship between the nonunion fracture of the
left medial malleolar to the work incident. In a decision dated March 5, 2013, it accepted
appellant’s claim for nonunion of the medial malleolar of the left ankle.
In a separate March 5, 2013 decision, OWCP denied appellant’s claim for continuation of
pay on the grounds that she failed to submit a written claim within 30 days of her July 22, 2011
employment injury.
LEGAL PRECEDENT
Section 8118(a) of FECA authorizes continuation of pay, not to exceed 45 days, of an
employee “who has filed a claim for a period of wage loss due to a traumatic injury with his or
her immediate superior on a form approved by the Secretary of Labor within the time specified
in section 8122(a)(2) of this title.”2 The latter section provides that written notice of injury shall
be given “within 30 days.” The context of section 8122 makes clear that this means within 30
days of the injury.3
OWCP regulations provide, in pertinent part, that to be eligible for continuation of pay,
an employee must: (1) have a “traumatic injury which is job related and the cause of the
disability, and/or the cause of lost time due to the need for medical examination and treatment;
(2) [f]ile Form CA-1 within 30 days of the date of the injury; and (3) [b]egin losing time from
work due to the traumatic injury within 45 days of the injury.”4 FECA authorizes continuation
of pay for an employee who has filed a valid claim for a traumatic injury.5
The Board has held that section 8122(d)(3) of FECA,6 which allows OWCP to excuse
failure to comply with the time limitation provision for filing a claim for compensation because
of “exceptional circumstances,” is not applicable to section 8118(a), which sets forth the filing
requirements for continuation of pay. Thus, there is no provision in the law for excusing an
employee’s failure to file a claim within 30 days of the employment injury.7
ANALYSIS
On July 3, 2012 appellant filed a claim for a July 22, 2011 traumatic injury. Because she
did not file a claim within 30 days, the time specified in sections 8118(a) and 8122(a)(2) of
FECA, she is not entitled to continuation of pay.
2

5 U.S.C. § 8118(a).

3

George A. Harrell, 29 ECAB 338 (1978); J.J., Docket No. 12-1045 (issued October 9, 2012).

4

20 C.F.R. § 10.205(a)(1-3).

5

5 U.S.C. § 8118(a).

6

Id. at § 8122(d)(3).

7

William E. Ostertag, 33 ECAB 1925, 1932 (1982).

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OWCP accepted the claim as timely and paid compensation. Claims that are timely
under section 8122 are not necessarily timely under section 8118(a). Section 8118(a) makes
continuation of pay contingent on the filing of a written claim within 30 days of the injury.
When an injured employee makes no written claim for a period of wage loss within 30 days, he
or she is not entitled to continuation of pay, notwithstanding prompt notice of injury.8 The
record shows that appellant provided written notice of injury on July 3, 2012, outside the 30-day
limitation set forth in the statute.
Appellant noted that on July 22, 2011, the date of the accident, her postmaster left early
but a mail truck driver witnessed the event and made a statement. She sought treatment;
however, her physicians did not do anything about her right ankle until February 2012 when an
x-ray revealed a fractured ankle requiring surgery. Appellant indicated that she waited almost a
full year before filing a claim for her ankle injury because she did not realize what occurred until
she remembered that in August 2011 a gate fell on her right ankle at work. OWCP advised that
in claim number xxxxxx818 she was treated for right ankle swelling and degenerative joint
disease but did not mention a July 22, 2011 injury. Appellant indicated that she had forgotten
what happened to her right ankle until August 2011 when the pain was all consuming and she
could not think straight. In the case of William E. Ostertag,9 the Board explained that the
exceptional circumstances provision of section 8122(d)(3), which may excuse the untimely filing
of an original claim for compensation under section 8122(a) and (b), is not applicable to section
8118(a) which concerns a claim for continuation of pay. Because FECA makes no provision for
an exception to the time limitation in section 8118(a), no exceptional or mitigating circumstance,
including error by the employing establishment, can entitle a claimant to continuation of pay
who has not filed a written claim within 30 days of the date of injury.10 The Board notes that
appellant submitted many medical records in support of her claim but these documents are not
accepted by OWCP as one of the approved forms for filing written notice of a claim for wage
loss due to a traumatic injury.11 It is the claimant’s burden to provide written notice of injury
and reports from her physicians are not completed or signed by the claimant. Appellant did not
submit written notice of injury on an approved form until July 3, 2012, more than 30 days after
the July 22, 2011 employment injury. Therefore, appellant is not entitled to continuation of pay.
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.

8

W.W., 59 ECAB 533 (2008).

9

Supra note 7.

10

Laura L. Harrison, 52 ECAB 515 (2002).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Payments, Chapter
2.807.5(b) (June 2012) which lists the approved forms as CA-1, CA-2, CA-2a and CA-7, forms that contain words
of claim.

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CONCLUSION
The Board finds that appellant’s claim for continuation of pay is barred by the time
limitation provision of 5 U.S.C. § 8118 of FECA.12
ORDER
IT IS HEREBY ORDERED THAT the March 5, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

12

With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Seneca, NY, Employer
__________________________________________

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

Docket No. 19-0307
Issued: June 18, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 27, 2018 appellant, through counsel, filed a timely appeal from a
September 26, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

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

The Board notes that, during the pendency of this appeal, OWCP issued a January 3, 2019 decision which
expanded the acceptance of appellant’s claim to include left plantar fascia tear. This decision, however, is null and
void as the Board and OWCP may not simultaneously exercise jurisdiction over the same issue(s). See 20 C.F.R.
§§ 501.2(c)(3), 10.626; see also M.C., Docket No. 18-1278, n.1 (issued March 7, 2019); Lawrence Sherman, 55 ECAB
359, 360 n.4 (2004); Douglas E. Billings, 41 ECAB 880 (1990).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include additional left foot and left knee conditions causally
related to her accepted May 9, 2017 employment injury.
FACTUAL HISTORY
On May 10, 2017 appellant, then a 53-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 9, 2017 she sustained a left foot injury when she stepped on a
protruding metal pipe (fencing post) as she crossed a corner lawn while in the performance of duty.
She alleged that it was painful to walk on her swollen and tender foot. Appellant stopped work on
the filing date of her claim.
On May 9, 2017 the employing establishment executed an authorization for examination
and/or treatment (Form CA-16) authorizing medical treatment for appellant’s claimed employment
incident on that date.
OWCP subsequently received a medical report dated May 10, 2017 by Dr. Joseph P.
Cronin, a Board-certified internist. Dr. Cronin noted a history that appellant sustained a left foot
injury one day ago while at work. He related her medical history and findings on physical
examination. Dr. Cronin provided an assessment of left plantar fasciitis and sprain of the left foot.
In a left foot x-ray report dated May 10, 2017, Dr. Mark Perry, a radiologist, provided an
impression of normal left foot.
A work status report dated May 18, 2017 by Liane Kirchberger, a physician assistant,
diagnosed left foot strain and plantar fasciitis and provided appellant’s work restrictions. In a duty
status report (Form CA-17) of the same date, Ms. Kirchberger indicated that appellant sustained a
left foot strain due to injury. She advised that appellant could resume work with restrictions.
Dr. Cronin, in an undated Part B of the Form CA-16, attending physician’s report,
reiterated his diagnoses of plantar fasciitis and sprain of the left foot. He also noted appellant’s

3

5 U.S.C. § 8101 et seq.

4
The Board notes that, following the September 26, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

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work restrictions. In a work status report dated May 10, 2017, Dr. Cronin further addressed her
work restrictions.
In a letter dated May 19, 2017, Joshua Weeks, a certified physician assistant, noted that
appellant was seen in his office on that date. He related that she was unable to work due to her
medical condition. Mr. Weeks indicated that appellant could return to work on May 29, 2017
without medical restrictions.
In a report dated May 18, 2017, Dr. Jerry Ulatowski, a pediatrician, noted that appellant
presented for a follow-up evaluation of her left foot injury which occurred when she stepped on a
metal post pipe at work on May 9, 2017. He discussed examination findings and provided an
assessment of left foot strain, subsequent encounter.
A report dated May 19, 2017 by Dr. Robert Erickson, a Board-certified family practitioner,
noted a history of the May 9, 2017 employment incident. The report provided examination
findings and assessments of pain in the left ankle and joints of the left foot, and plantar fascial
fibromatosis. Dr. Erickson checked a box marked “yes” indicating that the described incident was
the medical cause of appellant’s injury/illness. Additional boxes were checked “yes” indicating
that her complaints were consistent with her history of injury/illness and that her history of
injury/illness was consistent with objective findings. It was determined that appellant had 75
percent temporary impairment.
Mr. Weeks, in a work capacity evaluation (Form OWCP-5c) dated June 2, 2017, noted that
although appellant was unable to perform her usual job without restrictions because she was unable
to walk extended distances, she could work eight hours a day with restrictions for one to two
weeks.
In a development letter dated June 7, 2017, OWCP advised appellant that when her claim
was received it appeared to be a minor injury that resulted in minimal or no lost time from work.
The claim was administratively approved to allow payment for limited medical expenses, but the
merits of the claim had not been formally adjudicated. OWCP advised that, because appellant had
not returned to full-time work, her claim would be formally adjudicated. It requested that she
submit factual and medical information, including a comprehensive report from her physician
regarding how the reported work incident caused or aggravated her claimed injury. OWCP
afforded appellant 30 days to submit the necessary evidence.
In a letter dated May 26, 2017, Mr. Weeks noted that appellant was seen in his office on
that date and that she was unable to return to work until further notice.
In a narrative report dated June 19, 2017, Dr. Lee D. Billing, an attending podiatrist, noted
a history and reported examination findings and provided assessments of other sprain of the left
foot, initial encounter, and left foot pain. Dr. Billing, in a June 26, 2017 duty status report (Form
CA-17), diagnosed other specified injury of intrinsic muscle and tendon at ankle and foot level,
left foot, subsequent encounter due to appellant’s May 9, 2017 injury. He advised that she was
unable to perform her regular work duties. In an attending physician’s report (Form CA-20) dated
June 28, 2017, Dr. Billing reiterated appellant’s history of injury. He diagnosed tear of the plantar
fasciitis and tendinitis of the left foot. Dr. Billing checked a box marked “yes” indicating that the

3

diagnosed conditions were caused or aggravated by the described employment activity. He
advised that appellant was totally disabled from June 19, 2017 through the date of his examination.
By decision dated July 21, 2017, OWCP accepted that the May 9, 2017 employment
incident occurred as alleged. However, appellant’s claim remained denied because the medical
evidence of record did not contain a rationalized opinion relating her diagnosed left foot conditions
to the accepted employment incident.
OWCP received an additional report dated July 17, 2017 by Dr. Billing in which he
continued to assess appellant as having a sprain of the left foot, initial encounter, and left foot pain.
In a report dated July 27, 2017, Dr. Billing maintained that appellant’s left foot injury, which
occurred while she was on her route on May 9, 2017, was definitely a workers’ compensation
injury as she was injured while delivering mail.
In a left foot magnetic resonance imaging (MRI) scan report dated June 26, 2017, Dr. Paul
Pizzella, a Board-certified diagnostic radiologist, provided an impression of tear of the medial
band of the plantar fascia with splitting, thickening, and internal edema. He indicated that
inflammatory changes were seen in the adjacent ﬂexor digitorum brevis muscle and subcutaneous
tissues. Dr. Pizzella related that the findings were acute in nature.
On August 11, 2017 appellant requested reconsideration of OWCP’s July 21, 2017
decision and submitted additional medical evidence. In an additional report dated July 27, 2017,
Dr. Billing diagnosed left foot tear of the plantar fasciitis, as verified by a left foot MRI scan.
In attending physician reports (Form CA-20) dated August 16 and 30, 2017, Dr. Billing
continued to diagnose tear of the plantar fasciitis and tendinitis of the left foot. He again checked
a box marked “yes” indicating that the diagnosed conditions were caused or aggravated by the
described employment activity. Dr. Billing noted that appellant was totally disabled for the period
June 19 through September 29, 2017. In reports dated July 17 and August 15, 2017, he continued
to provide assessments of left foot pain and sprain of the left foot, initial encounter. Dr. Billing
also provided an assessment of other sprain of the left foot, subsequent encounter.
In an August 21, 2017 report, Dr. Erickson noted a history that appellant was injured while
working as a mail carrier. He diagnosed a rupture of the plantar fasciitis of the left foot.
Dr. Erickson advised that appellant was unable to work from May 9 through October 30, 2017.
In a duty status report (Form CA-17) dated July 13, 2017, Dr. Billing provided a diagnosis
of healing plantar fascial tear, left foot. He indicated that the diagnosis was due to the accepted
May 9, 2017 employment incident. Dr. Billing advised that appellant could return to work with
restrictions, four hours a day. In attending physician reports (Form CA-20) dated September 13
through October 31, 2017, he continued to diagnose plantar fasciitis tear of the left foot.
Dr. Billing also diagnosed possible complex regional pain syndrome, peroneal tendinitis, and
stress fracture of the fifth metatarsal of the left foot. He checked a box marked “yes” indicating
that the diagnosed conditions were caused or aggravated by the accepted May 9, 2017 employment
incident. Dr. Billing also advised that appellant was totally disabled for the period June 19 through
September 27, 2017. Appellant could resume light-duty work on September 18, 2017 and regular
work on October 16, 2017. Dr. Billing later determined that she was unable to resume her regular

4

work. In a prescription note dated September 13, 2017, he indicated that appellant may return to
work, four hours a day, on September 18, 2017.
By decision dated November 9, 2017, OWCP modified its July 21, 2017 decision to reflect
that the medical evidence of record was sufficient to establish that appellant sustained a left foot
sprain as a result of the accepted May 9, 2017 employment incident. However, the claim remained
denied as causal relationship had not been established between the other diagnosed left foot
medical conditions and the accepted employment injury.
OWCP received additional reports by Dr. Billing. In attending physician reports (Form
CA-20) dated November 8, 22, and 29, 2017, Dr. Billing continued to check a box marked “yes”
indicating that appellant’s diagnosed tear of the plantar fasciitis, stress fracture of the fifth
metatarsal, and peroneal tendinitis of the left foot were caused or aggravated by the accepted
May 9, 2017 employment injury. He also continued to address appellant’s work capacity. In a
November 21, 2017 narrative report, Dr. Billing noted appellant’s left foot complaints and findings
on physical examination. He provided assessments of peroneal tendinitis of the left leg and
reiterated his diagnosis of other specified injury of intrinsic muscle and tendon at ankle and foot
level, left foot, subsequent encounter. In a Form OWCP-5c report dated November 29, 2017,
Dr. Billing indicated that appellant was restricted to four hours of sitting work. On that same day,
he prescribed an MRI scan of her left foot and reiterated his diagnosis of left foot plantar fasciitis
tear.
On December 4, 2017 the employing establishment informed OWCP that appellant had
returned to work on September 18, 2017 for four hours and stopped work again on
September 23, 2018. Appellant returned to work again on October 2, 2017 for four hours a day
with restrictions.
OWCP received additional reports dated December 7, 2017 through June 6, 2018 from
Dr. Billing who reiterated his prior diagnoses and opinion on causal relationship. Dr. Billing also
diagnosed other enthesopathy of the left foot. He advised that appellant was totally disabled for
the period December 21, 2017 through March 5, 2018. In a prescription dated January 25, 2018,
Dr. Billing noted that appellant was disabled from December 21, 2017 through February 12, 2018
due to her plantar fasciitis tear. He ordered post-cast rehabilitation for four weeks in an additional
prescription of the same date. In reports dated January 30, February 14, and March 19, 2018,
Dr. Billing reiterated that appellant was restricted to four hours of sitting work. He subsequently
advised that she could work with restrictions, six hours a day.
In an additional left foot MRI scan report dated December 19, 2017, Dr. Pizzella provided
impressions of persistent tear involving the medial band plantar fascia showing, intrasubstance
component with resolution of the surface component, and edema/inﬂammation along the plantar
soft tissues of the heel with no discrete hematoma. He also provided an impression of resolution
of the inﬂammatory change/tear involving the flexor digitorum brevis muscle.
A report from appellant’s physical therapist addressed the treatment of her left foot
conditions on January 30, 2018.

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On June 28, 2018 appellant, through counsel, requested reconsideration of OWCP’s
November 9, 2017 decision.
OWCP received additional reports dated June 27, July 18, August 9 and 22, and
September 5 and 19, 2018 by Dr. Billing in which he continued to note her condition was work
related. In a prescription dated July 18, 2018, Dr. Billing indicated that appellant could work eight
hours a day, but the last two hours of the day should be limited-duty work. Appellant’s work
schedule was for three months.
By decision dated September 26, 2018, OWCP denied modification of its November 9,
2017 decision.5
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that he or she is an employee of the United
States within the meaning of FECA, 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 or
specific condition for which compensation is claimed is causally related to the employment injury.7
These are the essential elements of each and every compensation claim, regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.8
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.9 To establish causal relationship between the condition, as well
as any attendant disability claimed and the employment event or incident, the employee must
submit rationalized medical opinion evidence based on a complete factual and medical
background, supporting such a causal relationship.10 The opinion of the physician must be based
on a complete factual and medical background of the claimant, 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 claimant.11
The weight of medical evidence is determined by its reliability, its probative value, its convincing
5

By decision dated April 12, 2018, OWCP denied appellant’s claim for a recurrence of disability from
September 23 through October 1, 2017 causally related to her accepted May 9, 2017 employment injuries. Also, by
decision dated April 13, 2018, it denied her additional claim for an employment-related recurrence of disability
December 21, 2017 through January 5, 2018.
6

Id.

7

See F.H., Docket No. 18-1238 (issued January 18, 2019); Tracey P. Spillane, 54 ECAB 608 (2003).

8
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

10

See S.A., Docket No. 18-0399 (issued October 16, 2018).

11

See P.M., Docket No. 18-0287 (issued October 11, 2018).

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quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include the additional left foot conditions causally
related to her accepted May 9, 2017 employment injuries.
In support of her claim, appellant submitted a series of reports from her attending
physician, Dr. Billing. In attending physician’s reports (Form CA-20) Dr. Billing diagnosed
various left ankle and foot conditions, including plantar fasciitis tear, peroneal tendinitis, possible
regional pain syndrome, and stress fracture of the fifth metatarsal of the left foot. He checked a
box marked “yes” indicating that the diagnosed conditions were caused or aggravated by the
accepted May 9, 2017 employment injuries. Dr. Billing also indicated that appellant was either
partially or totally disabled from work on intermittent dates from June 19, 2017 through
September 29, 2017. The Board has held that when a physician’s opinion on causal relationship
consists only of a checkmark on a form, without more by way of medical rationale, the opinion is
of diminished probative value.13 Dr. Billing has not provided the necessary medical rationale
explaining how appellant’s left foot sprain caused or aggravated her diagnosed conditions and
resulted in her total disability from work. Therefore, the Board finds that his reports are
insufficient to establish her burden of proof.14
Similarly, Dr. Erickson’s May 19, 2017 report is insufficient to establish appellant’s
burden of proof. He diagnosed pain in the left ankle and joints of the left foot, and plantar fascial
fibromatosis. Dr. Erickson checked a box marked “yes” indicating that the accepted May 9, 2017
employment incident caused the diagnosed conditions. He reasoned that appellant’s complaints
were consistent with her history of injury/illness and that her history of injury/illness was
consistent with his objective findings. The Board finds, however, that Dr. Erickson has not
specifically identified the physical or objective findings that supported his conclusion. He did not
provide adequate rationale explaining the basis of his opinion on causal relationship.15
Dr. Erickson’s remaining August 21, 2017 report diagnosed rupture of the plantar fasciitis of the
left foot and found that appellant was totally disabled from work from May 9 through
October 30, 2017. He opined that she was injured while working as a mail carrier. While
Dr. Erickson’s opinion is generally supportive of causal relationship, he again did not provide

12

F.H., supra note 7.

13

See J.L., Docket No. 18-0698 (issued November 5, 2018); R.A., Docket No. 17-1472 (issued December 6, 2017);
Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).
14

See V.H., Docket No. 18-1282 (issued April 2, 2019).

15

See M.B., Docket No. 18-0906 (issued November 21, 2018).

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adequate medical rationale explaining the basis of his opinion on causal relationship.16 Thus, the
Board finds that his reports are insufficient to establish appellant’s burden of proof.
Similarly, Dr. Billing’s duty status reports (Form CA-17) and July 27, 2017 report are
insufficient to establish appellant’s burden of proof. In the Form CA-17 reports, he diagnosed
other specified injury of intrinsic muscle and tendon at ankle and foot level, left foot, subsequent
encounter due to the accepted May 9, 2017 employment injuries. Dr. Billing initially opined that
appellant was unable to perform her regular work duties and subsequently found that she could
work four hours a day with restrictions. In the July 27, 2017 report, he opined that appellant’s left
foot injury was employment related. Dr. Billing did not explain how appellant’s accepted
condition of left knee sprain caused her other specified injury of intrinsic muscle and tendon at
ankle and foot level, left foot, subsequent encounter and disability.17 Thus, his reports are
insufficient to establish her burden of proof.18 Dr. Billing’s remaining reports and prescriptions
addressed appellant’s left knee conditions, disability from work, and work restrictions, but did not
offer a medical opinion finding that the diagnosed conditions were causally related to the accepted
work injuries.19 The Board finds, therefore, that Dr. Billing’s reports are insufficient to establish
appellant’s burden of proof.
Likewise, the reports of Dr. Cronin and Dr. Ulatowski are insufficient to establish
appellant’s burden of proof. The physicians diagnosed plantar fasciitis and left foot strain and
addressed appellant’s work restrictions, but did not provide an opinion that the diagnosed
conditions and work restrictions were caused by the accepted employment injuries.20
While the x-ray and MRI scan reports of Dr. Perry and Dr. Pizzella offered left knee
diagnoses, the Board has held that diagnostic studies lack probative value as they do not address
whether the employment injury caused any of the diagnosed conditions.21
Appellant also submitted reports from Ms. Kirchberger and Mr. Weeks, physician
assistants, and appellant’s physical therapist. This evidence has no probative because neither a
physician assistant nor a physical therapist is considered a “physician” as defined under FECA.22

16

Id.

17

See P.J., Docket No. 17-0570 (issued October 26, 2017).

18

V.H., supra note 14.

19

See C.N., Docket No. 17-1321 (issued January 16, 2018).

20

Id.

21

See V.H., supra note 14; J.S., Docket No. 17-1039 (issued October 6, 2017).

22

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005). David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). George H. Clark, 56 ECAB 162 (2004) (physician
assistant); Jane A. White, 34 ECAB 515, 518 (1983) (physical therapist).

8

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence.23 Appellant failed to provide
reasoned medical evidence demonstrating that she sustained additional left knee conditions that
were caused or aggravated by the accepted May 9, 2017 employment injuries. Accordingly, the
Board finds that she has failed to meet her burden of proof to establish expansion of the accepted
conditions of her claim.24
On appeal counsel contends that OWCP failed to adjudicate the claim in accordance with
the causation standard. He further contends that it also failed to give due deference to an attending
physician’s findings. However, as discussed above, appellant’s physicians, included Dr. Billing,
did not provide a rationalized opinion sufficient to show that appellant’s diagnosed left knee
conditions were causally related to the accepted employment-related injuries.25
Appellant may submit new evidence or argument with a written request for reconsideration,
to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include the additional left foot and left knee
conditions causally related to her accepted May 9, 2017 employment injuries.

23

Supra note 9.

24

Supra note 10; J.C., Docket No. 18-1722 (issued April 5, 2019).

25

The Board notes that on May 9, 2017 the employing establishment issued appellant a signed authorization for
examination and/or treatment (Form CA-16) authorizing medical treatment. The Board has held that where an
employing establishment properly executes a CA-16 form, which authorizes medical treatment as a result of an
employee’s claim for an employment-related injury, it creates a contractual obligation which does not involve the
employee directly to pay the cost of the examination or treatment regardless of the action taken on the claim. See 20
C.F.R. §§ 10.300, 10.304; R.W., Docket No. 18-0894 (issued December 4, 2018).

9

ORDER
IT IS HEREBY ORDERED THAT the September 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 18, 2019
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Florence, AZ, Employer
__________________________________________

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

Docket No. 21-1413
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On September 20, 2021 appellant filed a timely appeal from an April 20, 2021 merit
decision and a May 7, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).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 merits of this case.
ISSUES
The issues are: (1) 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; and
1
The Board notes that, following the May 7, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 8, 2019 appellant, then a 28-year-old deportation officer, filed a traumatic injury
claim (Form CA-1) alleging that she developed cysts on both wrists on July 5, 2019 during
physical training while in the performance of duty.3 OWCP accepted the claim for bilateral carpal
tunnel syndrome and left wrist ganglion and resulting surgery. It authorized wage-loss
compensation on the supplemental rolls beginning on June 9, 2020. Appellant returned to fulltime light-duty work on July 12, 2020 and full-duty work on September 13, 2020.
On November 25, 2019 appellant underwent electromyogram and nerve conduction
velocity (EMG/NCV) studies of the upper extremities, which exhibited no electrodiagnostic
evidence of neuropathy or radiculopathy.
On December 2, 2019 appellant underwent a magnetic resonance imaging (MRI) scan of
her left wrist, which demonstrated small synovial cyst and capsular defect of the radiocarpal
articulation without vascular involvement, and a tiny partial tear or degeneration of the triangular
fibrocartilage complex.
On June 9, 2020 appellant underwent OWCP-authorized bilateral carpal tunnel surgical
releases and left snuffbox ganglion excision.
On July 29, 2020 appellant underwent an MRI scan of her right wrist due to a right wrist
lump following her carpal tunnel release surgery. This scan demonstrated joint effusion.
In a report dated October 9, 2020, appellant’s attending physician, Dr. Joseph L. Haber, a
Board-certified hand and plastic surgeon, found that she had reached maximum medical
improvement (MMI) with excellent sensation of the digits, a negative Tinel’s sign over the median
nerves, and intact sensation. He reported that appellant had zero percent disability.
On March 9, 2021 appellant filed a claim for (Form CA-7) for a schedule award. By letter
dated March 15, 2021, she noted that she received a response to her Form CA-7, that she would
need to be seen by a doctor for an impairment rating and requested approval to see a different
doctor.
In a March 15, 2021 development letter, OWCP requested that appellant provide an
impairment rating using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).4 It afforded her 30 days to submit
additional medical evidence in support of her schedule award claim.

3

In her April 11, 2020 response to an OWCP development questionnaire, appellant clarified that her claim was for
an occupational disease developing from June through July 2019.
4

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

2

In a March 22, 2021 report, Dr. Haber found that appellant had no permanent impairment.
In a letter of even date, appellant requested an evaluation by another physician.
By decision dated April 20, 2021, 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, warranting a schedule award.
On April 25, 2021 appellant requested reconsideration of the April 20, 2021 decision. She
asserted that Dr. Haber failed to consider the fluid in her right wrist, her pain, and her inability to
perform common tasks such as pushups as well as gripping and carrying heavy objects.
By decision dated May 7, 2021, OWCP denied appellant’s request for reconsideration of
the merits of appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA 5 and its implementing regulations 6 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. OWCP has adopted the
A.M.A., Guides as the uniform standard applicable to all claimants. As of May 1, 2009, the sixth
edition of the A.M.A., Guides is used to calculate schedule awards. 7
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in A.M.A.,
Guides, Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying
relevant text.8 In Table 15-23, grade modifier levels (ranging from zero to four) are described for
the categories of test findings, history, and physical findings. The grade modifier levels are
averaged to arrive at the appropriate overall grade modifier level and to identify a default rating
value. The default rating value may be modified up or down based on functional scale, an
assessment of impact on daily living activities (QuickDASH).9
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. 10 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 that the date on
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

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

A.M.A., Guides 449.

9

Id. at 448-49.

10

J.P., Docket No. 21-0801 (issued December 22, 2021); N.S., Docket No. 21-0508 (issued September 22, 2021);
Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

3

which this occurred (date of MMI), 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.11 Its procedures further provide that, if a claimant has not submitted a permanent
impairment evaluation, it should request a detailed report that includes a discussion of how the
impairment rating was calculated. 12 If the claimant does not provide an impairment evaluation
and there is no indication of permanent impairment in the medical evidence of file, the claims
examiner may proceed with a formal denial of the award. 13
ANALYSIS -- ISSUE 1
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 schedu le award.
OWCP, on March 15, 2021, requested that appellant submit a permanent impairment
evaluation from her physician addressing the extent of any employment-related permanent
impairment using the A.M.A., Guides. Appellant did not, however, submit any medical evidence
establishing permanent impairment.
In his October 9, 2020 report, Dr. Haber found that appellant had reached MMI with
excellent sensation of the digits, a negative Tinel’s sign over the median nerves, and intact
sensation. He did not report any permanent impairment.
As noted above, appellant must submit an evaluation from a physician that includes a
description of impairment in sufficient detail so that the claims examiner and others reviewing the
file will be able to clearly visualize the impairment with its resulting restrictions and limitations. 14
As she has not submitted any medical evidence supporting permanent impairment of a scheduled
member or function of the body due to her accepted conditions, the Board finds that she has not
met her burden of proof.
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.

11

Supra note 7 at Chapter 2.808.5 (March 2017).

12

Id. at Chapter 2.808.6a. (March 2017).

13

Id. at Chapter 2.808.6c. (March 2017).

14

See D.J., Docket No. 20-0017 (issued August 31, 2021); B.V., Docket No. 17-0656 (issued March 13, 2018);
C.B., Docket No. 16-0060 (issued February 2, 2016); P.L., Docket No. 13-1592 (issued January 7, 2014).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 15
To require OWCP to reopen a case for merit review, pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.16
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 17 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 18 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request fo r reconsideration without
reopening the case for review on the merits. 19
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
OWCP previously denied her claim because the medical evidence of record was
insufficient to establish permanent impairment of scheduled member or function of the body,
warranting a schedule award. Thus, the Board must determine if appellant presented sufficient
evidence or argument regarding her schedule award claim to warrant a merit review pursuant to
5 U.S.C. § 8128(a).20
In her April 25, 2021 reconsideration request, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law and did no t advance a new and relevant
15

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
16

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
17

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
18

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

19

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

20

See S.M., Docket No. 21-0392 (issued August 12, 2012); H.T., Docket No. 20-1318 (issued April 27, 2021).

5

legal argument not previously considered by OWCP. Accordingly, the Board finds that appellant
is not entitled to a review of the merits based on the first and second above -noted requirements
under 20 C.F.R. § 10.606(b)(3).21
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. With her reconsideration request, appellant submitted a
statement noting her disagreement with Dr. Haber’s October 9, 2020 report finding no evidence of
permanent impairment. The underlying issue of the present case is whether appellant has
submitted sufficient medical evidence to establish impairment of scheduled member o r function
of the body. The Board has held that the submission of evidence or argument which does not
address the particular issue involved does not constitute a basis for reopening a case. 22 Thus, she
is not entitled to a review of the merits of her claim based on the third requirement under 20 C.F.R.
§ 10.606(b)(3). 23
The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of her claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.24
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. The
Board further finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

21

Supra note 15.

22

A.M., Docket No. 20-1417 (issued July 30, 2021); E.J., Docket No. 19-1509 (issued January 9, 2020); M.K.,
Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).
23

Supra note 15; see T.H., Docket No. 18-1809 (issued May 23, 2019); Johnny L. Wilson, Docket No. 98-2536
(issued February 13, 2001).
24

See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020);
Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening
the case for a review on the merits).

6

ORDER
IT IS HEREBY ORDERED THAT the April 20 and May 7, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, MORGAN
PROCESSING & DISTRIBUTION CENTER,
New York, NY, Employer
__________________________________________

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

Docket No. 19-0887
Issued: October 20, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 19, 2019 appellant filed a timely appeal from a September 20, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The most recent merit
decision was a decision of the Board, dated September 7, 2017, which became final after 30 days
of issuance, and is not subject to further review.2 As there was no merit decision issued by OWCP
within 180 days from the filing of this appeal, pursuant to the Federal Employees’ Compensation

1
Appellant also filed a timely request for oral argument in this case. In a separate order issued on July 20, 2020
the Board denied her request for oral argument as oral argument would further delay issuance of a Board decision and
not serve a useful purpose. Order Denying Request for Oral Argument, Docket No. 19-0887 (issued July 20, 2020).
2
20 C.F.R. § 501.6(d); see M.S., Docket No. 18-0222 (issued June 21, 2018); J.P., Docket No. 17-0053 (issued
May 23, 2017); R.M., Docket No. 14-1213 (issued October 15, 2014).

Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of
this case.4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On April 8, 2013 appellant, then a 38-year-old mail handler, filed a notice of recurrence
(Form CA-2a) alleging that on March 31, 2013 she felt a sharp pain and stiffness in her neck when
opening bags while in the performance of duty. She reported the date of the original injury as
August 30, 2007.6 Appellant indicated that she had recovered from the August 30, 2007
employment injury, but had sustained another injury on March 31, 2013.
In an April 4, 2013 letter, appellant noted that on March 29, 2013 she was working on a
sorter machine and loading tubs and on March 30, 2013 she was again working on the sorting
machine. Then on March 31, 2013 she was opening bags and felt a sharp pain in her back and
stiffness in her neck.
On April 25, 2013 OWCP indicated in a letter that it would develop this claim as a new
injury. It noted that appellant’s claim indicated that she was alleging a new traumatic injury on
March 31, 2013.
By decision dated June 14, 2013, OWCP denied appellant’s claim finding that she had
established that the incident occurred, as alleged, but that she had not submitted probative medical
evidence of a diagnosed condition causally related to the accepted employment incident. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the September 20, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
5

Docket No. 17-0833 (issued September 7, 2017).

6
Appellant had a prior claim for a traumatic injury on August 30, 2007, which OWCP accepted for cervical and
lumbar strains, and assigned OWCP File No. xxxxxx761.

2

On October 1, 2013, April 2 and December 3, 2014, and February 16 and November 7,
2016, appellant requested reconsideration and submitted additional evidence in support of her
claim.
By decisions dated December 24, 2013, June 30, 2014, February 19, 2015, May 16, 2016,
and January 17, 2017 OWCP denied modification.
On March 6, 2017 appellant, through counsel, appealed to the Board.
By decision dated September 7, 2017, the Board affirmed OWCP’s January 17, 2017
decision finding that appellant had not established an injury causally related to the accepted
March 31, 2013 employment incident.7
On September 10, 2018 appellant submitted OWCP’s January 17, 2017 appeal request
form and requested reconsideration of the September 7, 2017 merit decision.
By decision dated September 20, 2018, OWCP denied appellant’s request for
reconsideration of the merits of her claim finding that the request was untimely filed and failed to
demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.8 The Secretary of Labor may review an award for or against compensation at any
time on his or her own motion or on application.9 This discretionary authority, however, is subject
to certain restrictions. For instance, a request for reconsideration must be received within one year
of the date of OWCP’s decision for which review is sought.10 Timeliness is determined by the
document receipt date (i.e., the “received date” in OWCP’s Integrated Federal Employees’
Compensation System (iFECS)).11 Imposition of this one-year filing limitation does not constitute
an abuse of discretion.12
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit

7

Supra note 5.

8
5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
9

J.V., Docket No. 19-0990 (issued August 26, 2020); see L.D., Docket No. 18-1468 (issued February 11, 2019);
see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010);
W.C., 59 ECAB 372 (2008).
10

20 C.F.R. § 10.607(a).

11

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

12
G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).

3

decision was in error.13 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.14 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record.15
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.16 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must 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.17
ANALYSIS
The Board finds that OWCP properly denied appellant’s request of reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.18
OWCP received appellant’s request for reconsideration on September 10, 2018 which was
more than one year after the September 7, 2017 merit decision,19 which had affirmed OWCP’s
January 17, 2017 merit decision. The one-year period for requesting reconsideration began on the
date of the original OWCP decision, but the right to reconsideration within one year also
accompanies any subsequent merit decision on the issues, including any merit decision by the

13

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
14

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 11 at Chapter 2.1602.5 (February 2016).
15

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

16

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 11 at Chapter 2.1602.5(a) (February 2016).

17

Supra note 15.

18

R.T., Docket No. 20-0298 (issued August 6, 2020).

19

OWCP has no jurisdiction to review a Board decision. The decisions and orders of the Board are final as to the
subject matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R.
§ 501.6(d). Appellant had 30 days from the date of the Board’s September 7, 2017 decision to file a petition for
reconsideration with this Board of its decision. Id. at § 501.7. See also B.B., Docket No. 14-0464 (issued
June 4, 2014).

4

Board.20 As appellant’s request for reconsideration was untimely filed,21 she must demonstrate
clear evidence of error on the part of OWCP.22
The Board further finds that appellant has not demonstrated clear evidence of error. The
underlying issue is whether OWCP properly denied her traumatic injury claim because the
evidence of record was insufficient to establish that her diagnosed conditions were causally related
to the accepted March 31, 2013 employment incident. In support of her claim, appellant submitted
an appeal form requesting reconsideration of the Board’s September 7, 2017 decision. She did
not, however, submit evidence or arguments in support of her reconsideration request raising a
substantial question concerning the correctness of the denial of her claim.
Appellant did not submit evidence demonstrating that OWCP committed an error in
denying her claim for a traumatic injury in its January 17, 2017 decision.23 She has not otherwise
submitted evidence of sufficient probative value to raise a substantial question as to the correctness
of the Board’s September 7, 2017 decision affirming OWCP’s January 17, 2017 merit decision.24
Thus, appellant has not demonstrated clear evidence of error.
For these reasons, the Board finds that OWCP properly denied appellant’s request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

20

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

21

Supra note 17.

22

20 C.F.R. § 10.607(b); see R.T., Docket No. 19-0604 (issued September 13, 2019); see Debra McDavid, 57
ECAB 149 (2005).
23

W.R., Docket No. 18-1042 (issued February 12, 2019).

24

Supra note 17.

5

ORDER
IT IS HEREBY ORDERED THAT the September 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 20, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 10-529
Issued: October 8, 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 December 18, 2009 appellant filed a timely appeal from a December 2, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established he sustained an injury in the performance of
duty, causally related to his federal employment.
FACTUAL HISTORY
On September 2, 2009 appellant, a 55-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) for “left leg weakness,” a “tingling sensation in left leg
that will not go away” and a pinched nerve in his back. He first became aware of his condition
on August 24, 2009 and realized his condition was caused by his employment on
September 1, 2009. In an undated supplemental statement, appellant attributed his condition to

“continuous bending and lifting” employment activities he performed to distribute parcels and
mail.
On September 1, 2009 Dr. David Nguyen, a Board-certified physiatrist, diagnosed
lumbar radiculopathy, recommended appellant be restricted to modified duty for a period of time
and provided work restrictions.
Appellant submitted unsigned medical reports, a magnetic resonance imaging (MRI) scan
examination instruction form and a report signed by a physical therapist.
By letter dated October 6, 2009, the Office notified appellant that the evidence of record
was insufficient to establish his claim. It advised him that he needed to submit additional
evidence and provided guidance concerning the type of evidence required. Appellant submitted
an undated and unsigned note in which he described his leisure activities.
In a note dated October 12, 2009, appellant described his employment duties and history
of injury.
On October 26, 2009 appellant filed a wage-loss claim for the period September 7
through October 31, 2009 seeking leave without pay (LWOP) and “night differential.”
By decision dated December 2, 2009, the Office accepted the employment factors
appellant deemed responsible for his condition but denied the claim because the medical
evidence of record did not demonstrate that these employment factors caused a medicallydiagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.4 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
4

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

2

To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
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.
ANALYSIS
The Office accepted the employment factors appellant deemed responsible for his
condition. Appellant’s burden is to demonstrate that these employment factors caused a
medically-diagnosed condition. The medical opinion evidence of record lacks the detail and
reasoning required to establish causal relationship and, consequently, the Board finds appellant
has not established he sustained an injury in the performance of duty, causally related to his
federal employment.7
Appellant submitted unsigned reports and a report signed by a physical therapist.
Healthcare providers such as nurses, acupuncturists, physician assistants and physical therapists
are not considered physicians under the Act and, therefore, their reports and opinions have no
probative value.8 Similarly, reports and notes that are unsigned or that bear illegible signatures
are not considered probative evidence because they lack proper identification concerning their
author’s identity.9 This evidence does not establish the required causal relationship between the
accepted employment factors and appellant’s condition.
Dr. Nguyen diagnosed radiculopathy, but did not present findings on examination, did
not review appellant’s medical history, did not describe appellant’s employment duties and did
not explain how the accepted employment factors caused the condition he diagnosed. As such,
6

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

7

On appeal, appellant submitted additional evidence. The Board may not consider evidence for the first time on
appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision.)
8

5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (Docket No. 06-1564, issued February 27, 2007); Jerre R.
Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).
9

See e.g., Willie M. Miller, 53 ECAB 697 (2002).

3

his report has little probative value on the issue of causal relationship. For these reasons,
Dr. Nguyen’s opinion and report do not establish the required causal relationship.
An award of compensation may not be based on surmise, conjecture or speculation.10
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.11 The fact that a condition manifests itself or worsens during a
period of employment12 or that work activities produce symptoms revelatory of an underlying
condition13 does not raise an inference of causal relationship between a claimed condition and
identified employment factors.
The Board finds appellant has not established the essential element of causal relationship
because appellant has not submitted medical opinion evidence explaining how the accepted
employment factors caused or aggravated a firmly diagnosed medical condition.
CONCLUSION
The Board finds appellant has not established he sustained an injury in the performance
of duty, causally related to his federal employment.

10

Edgar G. Maiscott, 4 ECAB 558 (1952).

11

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

12

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

13

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

4

ORDER
IT IS HEREBY ORDERED THAT the December 2, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 8, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, NASHUA PRIORITY
MAIL PROCESSING CENTER, Nashua, NH,
Employer
__________________________________________

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

Docket No. 12-76
Issued: June 18, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 20, 2011 appellant, through her attorney, filed a timely appeal of the
August 24, 2011 merit decision of the Office of Workers’ Compensation Programs concerning a
wage-earning capacity determination. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly determined that appellant’s actual earnings as a
receptionist fairly and reasonably represented her wage-earning capacity.
On appeal, counsel contends that OWCP’s August 24, 2011 decision is contrary to fact
and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on May 3, 2001 appellant, then a 35-year-old casual label clerk,
sustained a lumbar subluxation as a result of lifting tubs of labels at work.2 It paid her wage-loss
compensation for total disability from June 26 through October 26, 2001. Effective November 4,
2011, OWCP placed appellant on the periodic rolls and she began to receive compensation every
28 days through April 19, 2010.
By letter dated February 11, 2009, OWCP referred appellant to a vocational rehabilitation
counselor based on the August 18 and December 5, 2008 medical reports from Dr. Gary J.
LaTourette, a Board-certified orthopedic surgeon and OWCP referral physician, who found that
appellant could work with restrictions.3 In a May 10, 2009 report, the rehabilitation counselor
advised that appellant could perform the positions of receptionist, reservation clerk and
information clerk based on her vocational test results and that the identified positions were
performed in sufficient numbers and were reasonably available in her commuting area.4
By letter dated July 29, 2009, OWCP advised appellant that it proposed to reduce her
wage-loss compensation benefits to reflect her ability to earn wages as a reservation clerk or
receptionist as the identified positions were within her medical restrictions. On July 30, 2009 it
approved her enrollment in a 45-day computer training program from August 18 through
November 23, 2009. Appellant was expected to complete the program by October 15, 2009 and
no later than October 23, 2009. She completed the training on October 15, 2009.
On March 21, 2010 appellant was offered and accepted a full-time reservation/check-in
representative position at USA Airways, Inc. in Las Vegas, Nevada. She was scheduled to start
work on March 22, 2010 at an hourly rate of $11.00, 40 hours per week. On March 23, 2010
appellant underwent an emergency appendectomy. She was released to return to work on
April 14, 2010 but USA Airways, Inc. gave her position to another employee.

2

In an August 15, 2001 decision, OWCP denied appellant’s request for authorization of pelvic reconstruction
surgery that she underwent on January 30, 2001, finding the surgery not causally related to her May 3, 2001
employment injury.
3

In the August 18, 2008 report, Dr. LaTourette advised that appellant could perform modified-duty work. He
stated that she needed retraining for a position outside the employing establishment because it did not have an
available position within her restrictions. Dr. LaTourette restricted appellant from lifting more than 10 pounds and
repeated bending and stooping. Appellant required a sedentary position that would allow her to walk around after
sitting for approximately one hour. Dr. LaTourette recommended additional diagnostic testing before he could
determine whether her accepted condition had resolved as there were two conflicting magnetic resonance imaging
(MRI) scans regarding whether she had a herniated lumbar disc and degenerative changes in the lumbar spine. In a
work capacity evaluation dated August 28, 2008, he advised that appellant could sit up to 45 minutes, walk carrying
no more than 5 pounds and operate a motor vehicle at and to and from work 30 to 45 minutes. Appellant could
push, pull or lift 5 to 10 pounds. In the December 5, 2008 report, Dr. LaTourette advised that an August 28, 2008
lumbar MRI scan demonstrated a bulge rather than herniation. A June 4, 2008 nerve conduction study showed no
neuropathy.
4

On April 25, 2005 appellant advised OWCP that she had moved to Henderson, Nevada.

2

On April 19, 2010 appellant accepted and began work as a full-time receptionist/
dispatcher at the Wynn Hotel in Las Vegas. She earned $12.00 per hour. On May 21, 2010
appellant advised the vocational rehabilitation counselor that beginning on May 24, 2010 her
work hours would be reduced from 40 hours per week to 30 to 35 hours per week. She was also
offered a full-time receptionist position at the Players Club located inside the Ellis Island Casino
in Las Vegas earning $9.00 per hour, 40 hours a week. On May 20, 2010 appellant stopped work
at the Wynn Hotel.
On May 29, 2010 appellant began working at the Ellis Island Casino as a receptionist
from 4:00 p.m. to 12:00 a.m., Tuesday through Saturday. On July 20 and 29, 2010 she advised
the vocational rehabilitation counselor that she continued to work at the Ellis Island Casino.
In an August 19, 2010 report, Dr. Jimmy John Nobleza Novero, an attending Boardcertified neurologist, advised that appellant could not return to work. He stated that a MRI scan
showed a pinched nerve. Dr. Novero restricted appellant from continuous standing and sitting
more than four hours. He recommended that she remain off work until further testing was
completed and the results were discussed with her. In an August 24, 2010 report, Dr. Novero
advised that appellant’s pinched nerve was exacerbated by prolonged standing and sitting.
In an August 23, 2010 report, Dr. LaTourette advised that a June 26, 2010 lumbar MRI
scan demonstrated that appellant had a three-millimeter disc protrusion with impingement of the
existing L5 nerve root. He further advised that the original MRI scan performed on July 7, 2001
revealed disc herniation. The August 28, 2008 lumbar MRI scan showed a disc bulge greater on
the left with mild neural foraminal narrowing to the left. It was estimated that this degenerative
signal was two millimeters extending to the left with mild facet arthropathy and mild neural
foraminal narrowing on the left. Dr. LaTourette stated that since 2001 appellant had objective
findings of disc herniation on the left side of her lumbar spine and symptoms. He advised that
this condition was caused by lifting and throwing tote bags, which was totally consistent with the
present findings and findings that were present in the summer of 2001. Dr. LaTourette listed
findings on physical examination which included an absent Achilles reflex that was consistent
with MRI scan findings. He diagnosed herniated nucleus pulposus at the L5-S1 level with
impingement of the S1 nerve root and probably impingement of the L5 nerve root.
Dr. LaTourette opined that appellant’s May 3, 2001 employment injury was the sole cause of this
problem although it had progressed because it had not been properly treated since the date of
injury. He further opined that the accepted lumbar subluxation was still present. Dr. LaTourette
advised that appellant could work six hours a day. He recommended that she be allowed to stand
and sit periodically throughout this period. Dr. LaTourette restricted appellant from lifting more
than 10 pounds. He advised that she should remain off work while being treated with an epidural
block and evaluated by a spine surgeon.
On October 19, 2010 OWCP requested that Dr. LaTourette explain how appellant’s
newly diagnosed lumbar condition was causally related to the accepted injury. Dr. LaTourette
was also asked to explain why appellant had residuals of the accepted condition and why she
could not work eight hours a day with the restrictions he listed or continue performing her
receptionist duties while undergoing testing.

3

In a December 14, 2010 report, Dr. LaTourette advised that his diagnosis of herniated
nucleus pulposus at L5-S1 was not a new diagnosis. It was a continuation of the diagnosis that
appellant had all along and was directly related to her May 3, 2001 employment injury.
Dr. LaTourette stated that she had significant objective findings to support her low back pain of
9 to 10 on a scale of 0 to 10. The objective findings included L5-S1 anular tear and protruding
disc that was directly impinging on the descending left S1 nerve root and an absent Achilles
reflex on the left. Dr. LaTourette reiterated his prior opinion that appellant could work six hours
a day with alternate sitting and standing frequently.
In a March 3, 2011 decision, OWCP determined that appellant’s actual wages as a
receptionist at Ellis Island Casino fairly and reasonably represented her wage-earning capacity as
she demonstrated an ability to perform the duties of the job for more than two months. It
reduced her compensation to zero because her actual wages exceeded the current wages of the
job she held when injured.
By letter dated March 9, 2011, appellant, through her attorney, requested a telephone
hearing with an OWCP hearing representative.
During the June 1, 2011 telephone hearing, appellant stated that she worked in a full-time
customer service job at the Ellis Island Casino that required her to give out cards to individuals
who placed them in machines and played a game while earning points for free meals and hotel
stays. She thought the position would be more like a receptionist position that allowed her to sit
and stand as needed. Appellant stated that she was not allowed to sit in the position. She stood
on a cement floor and had to argue with management to get a mat to stand on to help the
numbness she experienced while standing. Appellant’s pain for which she sought medical
treatment worsened over two and one-half months. She was advised by her vocational
rehabilitation counselor that she would obtain approval for the position from OWCP although it
was not a receptionist position. Appellant’s attorney contended that her job at the Ellis Island
Casino should not be used to determine her wage-earning capacity as the duties of the position
were outside her physical restrictions.
In an August 24, 2011 decision, an OWCP hearing representative affirmed the March 3,
2011 decision. He found that the receptionist position at Ellis Island Casino which was
performed by appellant for at least 60 days fairly and reasonably represented her wage-earning
capacity. The hearing representative further found that the medical evidence submitted by
appellant did not establish a work stoppage due to a change in the nature of her accepted
condition. He determined that the evidence established that appellant was not a full-time
employee on the date of injury. The hearing representative found, contrary to appellant’s
attorney’s contention that she earned $9,000.00 while working at the employing establishment,
that she earned $5,103.21 during this period.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.5 Disability means the incapacity, because of
5

5 U.S.C. § 8102(a).

4

an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.6
In determining compensation for partial disability, the wage-earning capacity of an
employee is determined by the employee’s actual earnings if the employee’s actual earnings
fairly and reasonably represent her wage-earning capacity.7 Generally, wages actually earned are
the best measure of a wage-earning capacity and in the absence of evidence showing that they do
not fairly and reasonably represent the injured employee’s wage-earning capacity must be
accepted as such measure.8
In the case of Albert C. Shadrick,9 the Board set forth the principle that, if current actual
earnings are used as one of the factors in computing an employee’s wage-earning capacity, then
the current increased wage for the employee’s original job should also be used to avoid any
distortions caused by changes in business conditions since the injury. Following this principle,
OWCP established the Shadrick formula as the method of computing compensation when
determining an injured worker’s wage-earning capacity.10
The Federal (FECA) Procedure Manual provides that OWCP may make a retroactive
wage-earning capacity determination if an employee has worked in the position for at least 60
days, the position fairly and reasonably represented her wage-earning capacity and the work
stoppage did not occur because of any change in the injury-related condition affecting the ability
to work.11
ANALYSIS
OWCP accepted that on May 3, 2011 appellant sustained a lumbar subluxation due to
performing her work duties on that date. Appellant returned to work on April 19, 2010 in a fulltime receptionist/dispatcher position at the Wynn Hotel and worked in this position until
May 20, 2010. Subsequently, on May 29, 2010, she began working at the Ellis Island Casino in
a full-time receptionist position. In a March 3, 2011 decision, OWCP determined that
appellant’s actual wages as a receptionist at the Ellis Island Casino fairly and reasonably
reflected her wage-earning capacity as she held the position for more than 60 days. It terminated
her wage-loss compensation as she now was earning greater wages than she did in her date-of-

6

20 C.F.R. § 10.5(f).

7

5 U.S.C. § 8115(a).

8

Don J. Mazurek, 46 ECAB 447 (1995).

9

5 ECAB 376 (1953).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.2 (December 1993). For the formula itself, see id., Computation of Compensation, Chapter
2.900.16.c (January 1991).
11

Id. at Chapter 2.814.7(c) (December 1993).

5

injury job. The March 3, 2011 decision constitutes a retroactive wage-earning capacity
determination.12
The Board finds that OWCP improperly reduced appellant’s compensation on March 3,
2011 based on her actual earnings in a receptionist position she performed from May 29 through
August 19, 2010. Appellant argued that her actual earnings as a full-time receptionist at Ellis
Island Casino did not fairly and reasonably represent her wage-earning capacity as the duties of
the position were outside her physical restrictions. She contended that a receptionist position
would allow her to sit and stand as needed, but she worked in a customer service position that
required her to stand on a cement floor handing out cards to individuals who placed them in
machines and played while earning points for free meals and hotel stays. Appellant stated that
she was not allowed to sit in this position. She had to stand on a mat to help with the numbness
she experienced while standing. The Board notes that the case record does not contain a
description of the work duties to be performed or of the specific physical requirements of the
receptionist position, as required.13 OWCP found only that the position was suitable because
appellant had demonstrated her ability to perform the duties for more than two months. It did not
address how such employment fairly or reasonably represented her wage-earning capacity as
required by its procedures.14 OWCP did not address appellant’s position at the Ellis Island
Casino as part of its adjudication. Consequently, it did not fully consider all criteria for making a
retroactive wage-earning capacity determination.15
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation to zero based
on its determination that her actual earnings as a receptionist fairly and reasonably represented
her wage-earning capacity.

12

Id.

13

Id. at Chapter 2.814.a.1 (June 1997).

14

Id. at Chapter 2.814.7(e).

15

Id.; see also Selden H. Swartz, 55 ECAB 272 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the August 24, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 18, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7