United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

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

Docket No. 07-1559
Issued: November 7, 2007

Case Submitted on the Record

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

JURISDICTION
On May 21, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated December 11, 2006 and April 4, 2007. Under 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that her
bilateral carpal tunnel condition is causally related to her federal employment.
FACTUAL HISTORY
On March 28, 2006 appellant, a 41-year-old nursing assistant, filed a Form CA-2 claim for
benefits, alleging a bilateral carpal tunnel condition causally related to factors of her employment.
By letter dated March 29, 2006, the Office advised appellant that it required additional
factual and medical evidence to determine whether she was eligible for compensation benefits.
The Office asked her to submit a comprehensive medical report from her treating physician

describing her symptoms and the medical reasons for her condition and an opinion as to whether
her claimed condition was causally related to her federal employment. The Office requested that
appellant submit the additional evidence within 30 days.
A March 9, 2006 emergency room treatment report outlined restrictions on appellant of no
lifting exceeding 20 pounds and no repetitive use of the wrists through March 21, 2006. The report
stated “not determined as work related.”
Appellant submitted treatment notes dated March 1 and April 4 and 18, 2006 from
Dr. Daryl Rosenbaum, a specialist in family practice, whose reports indicated that appellant had
bilateral carpal tunnel syndrome and placed her on light duty.
By decision dated May 3, 2006, the Office denied appellant’s claim, finding that she
failed to submit medical evidence sufficient to establish that she sustained the claimed condition
in the performance of duty.
On September 8, 2006 appellant requested reconsideration.
Dr. Shahla Namak, a specialist in family practice, submitted a medical capabilities form
dated April 24, 2006. She indicated that appellant could do lifting, pushing and pulling up to 15
pounds, and reach overhead, bend, stoop, walk and sit as tolerated. Dr. Namak recommended a
sedentary light-duty job in which appellant could do occasional light lifting up to five pounds,
with no typing or keyboarding. She advised appellant to take a 15-minute break every 2 hours.
Dr. Kevin Hamel, Board-certified in orthopedic surgery, submitted a work restriction
form dated May 25, 2006. He restricted appellant to a light-duty, sedentary job in which he
could do lifting not exceeding 20 pounds, with frequent lifting and/or carrying of objects
weighing up to 10 pounds, occasional reaching and no climbing.
In a June 28, 2006 report, Dr. William T. Mason, Board-certified in orthopedic surgery,
stated:
“This is a 42-year-old female that presents with a history of bilateral carpal tunnel
syndrome, bilateral shoulder pain. The right hand is worse than the left. It has
been severe enough that [appellant] is taking Ibuprofen 600 milligrams but
unfortunately it makes her nauseated.... She ... has had an electromyelogram
nerve conduction study showing that it is positive for carpal tunnel syndrome.
“[Appellant] describes the pain as sharp, stabbing, throbbing and aching. She also
has swelling and numbness of both of her hands with tingling and weakness in her
grip. [Appellant] seems to be getting worse as far as standing, walking, lifting,
exercise, twisting, lying in bed, bending, squatting, kneeling, stairs and sitting.
“Because of the type of work that she does I think that this is probably related to
the job at [the employing establishment] as a nursing assistant.”
In a July 31, 2006 treatment note, Dr. Mason indicated that appellant underwent right
carpal tunnel release surgery.

2

By decision dated December 11, 2006, the Office denied modification of the May 3, 2006
decision.
On December 22, 2006 appellant requested reconsideration.
Dr. T. Scott Ellison, Board-certified in orthopedic surgery, submitted an August 7, 2006
report which was received by the Office on January 11, 2007. He noted that appellant was
experiencing severe pain down her right arm and hand, with numbness and tingling; she expressed
interest in having surgery to ameliorate these symptoms.
By decision dated April 4, 2007, the Office denied modification of the December 11,
2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that 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 timely filed within the applicable time limitation period of the Act, that an injury was
sustained 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.2 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.3
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
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized
medical evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. 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

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

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nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.5
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s condition became apparent during a period of employment
nor the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.6 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
The Board finds that appellant has failed to submit sufficient medical evidence which
relates her bilateral carpal tunnel condition to factors of her federal employment. For this reason,
she has not discharged her burden of proof to establish that her condition was sustained in the
performance of duty.
Appellant submitted reports from Drs. Rosenbaum, Namak, Hamel and Mason.
However, the physicians did not provide a probative, rationalized medical opinion explaining
how the claimed condition was causally related to employment factors. Dr. Rosenbaum
diagnosed bilateral carpal tunnel syndrome and placed her on light duty. Drs. Namak and Hamel
placed appellant on medical leave, imposed work restrictions on appellant and recommended a
light, sedentary job upon her return to work. None of these reports addressed how appellant’s
work duties caused or contributed to her medical condition. Dr. Mason noted a history of
bilateral carpal tunnel syndrome, shown by an electromyelogram nerve conduction study, and
related complaints of sharp, stabbing, throbbing pain, with swelling and numbness of both of her
hands with tingling and weakness in her grip. He opined that due to the type of work she did her
symptoms were probably related to her job as a nursing assistant. Although Dr. Mason briefly
addressed causal relationship, his stated opinion is speculative in nature.
The medical reports of record do not describe appellant’s job duties or explain the
medical process through which such duties would have been competent to cause the claimed
condition. These reports, therefore, are of limited probative value as they do not contain sufficient
medical rationale explaining how or why appellant’s claimed bilateral carpal tunnel condition was
caused by or related to factors of her federal employment. Accordingly, appellant failed to submit
medical evidence to establish that her claimed bilateral carpal tunnel condition was causally
related to her employment. The Board will affirm the Office’s December 11, 2006 decision.
Following the December 11, 2006 decision, appellant submitted Dr. Ellison’s August 7,
2006 report. The weight of medical opinion is determined by the opportunity for and
4

Id.

5

See Joe T. Williams, 44 ECAB 518, 521 (1993).

6

Id.

4

thoroughness of examination, the accuracy and completeness of physician’s knowledge of the
facts of the case, the medical history provided, the care of analysis manifested and the medical
rationale expressed in support of stated conclusions.7 Dr. Ellison’s report did not present a
diagnosis of appellant’s bilateral carpal tunnel syndrome or an opinion describing how
appellant’s work activities caused her claimed condition. The report did not contain an opinion
which sufficiently described the medical process through which appellant’s employment would
have been competent to cause the claimed bilateral carpal tunnel condition. Appellant therefore
failed to provide a rationalized, probative medical opinion relating her current condition to any
factors of her employment.
The Office advised appellant of the evidence required to establish her claim; however,
she failed to submit such evidence. Consequently, she has not met her burden of proof in
establishing that she sustained a bilateral carpal tunnel condition in the performance of duty.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establishing that
her claimed bilateral carpal tunnel condition was sustained in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2007 and December 11, 2006 decisions
of the Office of Workers’ Compensation Programs be affirmed.
Issued: November 7, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7

See Anna C. Leanza, 48 ECAB 115 (1996).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbia Falls, MT, Employer
__________________________________________

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

Docket No. 18-1689
Issued: April 4, 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 September 6, 2018 appellant filed a timely appeal from a March 19, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
have elapsed from the last merit decision, dated December 8, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On November 4, 2014 appellant, then a 56-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed a herniated disc in her neck and disc bulges
in her neck and back as a result of her repetitive employment duties. She noted that she first
became aware of the claimed condition and its relationship to factors of her federal employment
on December 28, 2013. On the reverse side of the claim form the employing establishment
indicated that appellant had stopped work on January 2, 2014, first reported her condition to her
supervisor on November 4, 2014, and had not returned to work.
In a letter dated November 7, 2014, the employing establishment challenged appellant’s
occupational disease claim. It contended that she had failed to provide the evidence required to
support her claim, including a detailed description of the factors of employment believed to be
responsible for her condition, a history of her condition, and a comprehensive medical report from
her physician.
By development letter dated November 10, 2014, OWCP acknowledged receipt of
appellant’s claim and informed her that the evidence submitted was insufficient to establish her
claim. It provided a factual questionnaire for her completion and requested medical evidence in
support of her claim. OWCP afforded appellant 30 days to submit the necessary evidence.
In a work capacity evaluation form (OWCP-5c) dated July 22, 2014, Dr. Allen M. Weinert,
Board-certified in physical medicine and rehabilitation, noted appellant’s restrictions, which he
reported were permanent. He concluded that appellant would not be able to perform her usual
work duties.
In response to the November 10, 2014 development letter, appellant indicated that, while
working on December 28, 2013, she had just finished casing her mail when her back froze and she
could not turn to the right. She noted that she was unable to see her doctor until January 2, 2014.
In her completed questionnaire, appellant indicated that casing mail, pulling packages out of a tub,
and bending to lift heavy packages all contributed to her condition.
By decision dated December 30, 2014, OWCP denied appellant’s claim. It noted that she
had established that the employment factors occurred as described. However, OWCP found that
appellant had not submitted medical evidence containing a diagnosis in connection with her
alleged condition.
In a report dated January 15, 2015, Dr. Camden Kneeland, Board-certified in
anesthesiology and pain medicine, diagnosed chronic pain syndrome, myofascial pain, and
cervicogenic migraine.
In a report dated March 17, 2015, Dr. Kneeland examined appellant and diagnosed thoracic
myofascial strain (chronic), a strain of her neck, and chronic pain syndrome.
2

In a report dated February 20, 2014, received by OWCP on June 2, 2015, Dr. Patrick
McDonnell, a diagnostic radiology specialist, related that a magnetic resonance imaging (MRI)
scan revealed degenerative changes of appellant’s cervical spine along with the presence of
vertebral and facet joint arthrosis and a small right posterolateral disc protrusion at the T9-10 level
without significant neural impingement.
OWCP also received a report dated March 12, 2014, wherein Dr. William Benedetto,
Board-certified in diagnostic radiology, reviewed a cervical spine MRI scan and indicated that
appellant had multilevel spondylosis with disc space narrowing, anterior and posterior osteophytes
and posterior disc protrusions, a faint elevated T2 signal at the C5-6 level within the cord itself,
broad-based disc/osteophyte at C4-5 with moderate central canal narrowing, moderate left and
mild-moderate right foraminal narrowing, moderate broad-based C5-6 disc/osteophyte complex
with moderate central canal stenosis with moderate right and moderate-severe left foraminal
narrowing, mild C6-7 central canal narrowing with mild left foraminal narrowing, and a small far
lateral/foraminal C7-T1 disc extrusion.
On June 2, 2015 appellant requested reconsideration of OWCP’s December 30, 2014
decision.
In a report dated June 23, 2015, Dr. Kneeland examined appellant and again diagnosed
chronic pain syndrome.
By decision dated September 9, 2015, OWCP modified its December 30, 2014 decision to
find that appellant had established a medical diagnosis, but denied her claim because the medical
evidence of record did not relate her diagnosed conditions to any specific duties of her
employment. It noted that appellant had neither provided medical documentation that contained
specific employment duties/activities nor a physician’s opinion supported by medical explanation
as to how those duties in federal employment caused, contributed to, or aggravated her medical
conditions.
In a letter dated September 8, 2016, Dr. Kneeland opined that appellant’s chronic
myofascial pain syndrome was the result of a combination of her December 28, 2013 injury and
repetitive upper extremity, neck, and upper back use during her years in federal employment. He
noted that her chronic condition was exacerbated by the December 28, 2013 injury. Dr. Kneeland
opined that her chronic pain syndrome and her cervicogenic headaches were primarily the result
of chronic myofascial neck and upper back pain. He related that appellant’s duties were restricted
so not to include repetitive upper extremity, upper back, and neck movements.
On September 13, 2016 appellant requested reconsideration of OWCP’s September 9,
2015 decision.
By decision dated December 8, 2016, OWCP denied modification of the September 9,
2015 decision. It found that the evidence provided did not establish a correlation between the
diagnosed conditions of strain of neck and thoracic myofascial strain and specific employment
factors. OWCP noted that appellant had not provided a rationalized medical opinion establishing
causal relationship.

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In a report dated June 26, 2017, Dr. Dustin Carpenter, a family medicine specialist,
examined appellant and diagnosed myofascial pain dysfunction syndrome. He noted that appellant
had fallen recently and injured her ribs.
In a letter dated December 7, 2017, Dr. Kneeland indicated that appellant’s chronic pain
was due to her repetitive work duties. He noted that her federal employment activities resulted in
a chronic myofascial pain syndrome. Dr. Kneeland related that appellant’s duties as a mail carrier
directly resulted in her chronic myofascial pain, and that the pain had not resolved.
On December 19, 2017 OWCP received appellant’s reconsideration request of its
December 8, 2016 decision.
By decision dated March 19, 2018, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that for merit decisions issued on or
after August 29, 2011, the request for reconsideration must be “received” by OWCP within one
year of the date of the decision for which review is sought.5 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).6 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.7
OWCP will consider an untimely request for reconsideration only if the request
demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit decision.”8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the issue that
was decided by OWCP.9 The evidence must be positive, precise, and explicit and it must be
apparent on its face that OWCP committed an error.10 Evidence that does not raise a substantial
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
3

4

20 C.F.R. § 10.607.

5

Id. at § 10.607(a). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4 (February 2016).
6

Id. at Chapter 2.1602.4b.

7

See M.P., Docket No. 17-0367 (issued March 12, 2018); Thankamma Mathews, 44 ECAB 765 (1993).

8

20 C.F.R. § 10.607(b).

9

Id.

10

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

4

question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error.11 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.12
The Board notes that clear evidence of error is intended to represent a difficult standard.13
Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision
is insufficient to demonstrate clear evidence of error.14 It is not enough merely to establish that
the evidence could be construed so as to produce a contrary conclusion.15 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence demonstrates
clear error on the part of OWCP.16 The Board makes an independent determination as to whether
a claimant has demonstrated clear evidence of error on the part of OWCP.17 Where a request is
untimely and fails to demonstrate clear evidence of error, OWCP will deny the request for
reconsideration without reopening the case for a review on the merits.18
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration, as it
was untimely filed and failed to demonstrate clear evidence of error. Appellant had one year from
the date of OWCP’s December 8, 2016 decision to timely request reconsideration. One year from
December 8, 2016 fell on Friday, December 8, 2017. OWCP received appellant’s reconsideration
request on Tuesday, December 19, 2017. As OWCP did not receive appellant’s reconsideration
request until December 19, 2017, 11 days past the one-year deadline from the December 8, 2016
merit decision, it was untimely filed. Consequently, appellant must demonstrate clear evidence of
error by OWCP in the denial of her claim.19
The Board finds that appellant has failed to demonstrate clear evidence of error on the part
of OWCP in issuing its prior merit decision dated December 8, 2016. In support of her request,
appellant submitted a report dated June 26, 2017 from Dr. Carpenter, who diagnosed myofascial
pain dysfunction syndrome after appellant sought treatment for a fall and injury to her ribs. This
report refers to an incident unrelated to the occupational disease claim at issue in this case.
11

R.C., Docket No. 17-0198 (issued January 28, 2019); see Jesus D. Sanchez, 41 ECAB 964 (1990).

12

R.C., id.; Thankamma Mathews, supra note 7.

13

R.K., Docket No. 16-0355 (issued June 27, 2016).

14

R.L., Docket No. 18-0496 (issued January 9, 2019); Jimmy L. Day, 48 ECAB 652 (1997).

15

Id.

16

Id.

17

R.L., supra note 14; Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, supra note 7.

18

20 C.F.R. § 10.608(b).

19

Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

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Appellant also submitted a letter from Dr. Kneeland dated December 7, 2017, which indicated that
appellant’s chronic pain was “likely related” to her repetitive work duties. Dr. Kneeland noted
that her federal employment activities resulted in a chronic myofascial pain syndrome. However,
his opinions were largely repetitive from a letter dated September 8, 2016, which was submitted
prior to the December 8, 2016 decision. Repetitive or cumulative evidence is insufficient to prima
facie shift the weight of the evidence in favor of the claimant.20
The term clear evidence of error is intended to represent a difficult standard.21 Even a
detailed, well-rationalized medical report, which would have created a conflict in medical opinion
requiring further development if submitted prior to issuance of the denial decision, does not
constitute clear evidence of error. It is not enough to show that evidence could be construed so as
to produce a contrary conclusion. Instead, the evidence must shift the weight in appellant’s favor.22
Appellant failed to submit the type of positive, precise, and explicit evidence which
manifests on its face that OWCP committed an error in its December 8, 2016 decision denying her
claim for an employment-related back and neck condition.23 The evidence and argument
submitted in connection with her untimely reconsideration request did not raise a substantial
question concerning the correctness of OWCP’s prior decision.
As the evidence and argument submitted are of insufficient probative value to prima facie
shift the weight in favor of appellant and raise a substantial question as to the correctness of
OWCP’s last merit decision, appellant has failed to demonstrate clear evidence of error.24
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

See M.P., Docket No. 17-0367 (issued March 12, 2018).

21

See L.C., Docket No. 18-1407 (issued February 14, 2019).

22

Id.

23

See supra note 10.

24

J.W., Docket No. 18-0703 (issued November 14, 2018); see W.A., Docket No. 18-0297 (issued July 18, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the March 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE ARMY, TOBYHANNA )
ARMY DEPOT, Tobyhanna, PA, Employer
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__________________________________________ )
J.J., Appellant

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

Docket No. 14-1152
Issued: December 10, 2014

Case Submitted on the Record

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

JURISDICTION
On April 21, 2014 appellant filed a timely appeal from a March 25, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly rescinded its acceptance of appellant’s claim for
bilateral hearing loss.
FACTUAL HISTORY
On September 28, 2012 appellant, then a 55-year-old retired sheet metal worker, filed an
occupational disease claim alleging that he sustained bilateral hearing loss and ringing in the ears
while working in the sheet metal shop for over 18 years. He stated that he became aware of his
1

5 U.S.C. § 8101 et seq.

condition and first realized that it was employment related on June 14, 2006. Appellant noted
that for years he let it go, but after years of not hearing, he felt he had to open a claim when it
started to get worse. John P. Stanley of the employing establishment noted that appellant
reported the condition on September 28, 2012. The employing establishment stated that
appellant was last exposed to the condition alleged to have caused his condition on June 1, 1996
and that he retired in 2011.
On November 16, 2012 OWCP requested that appellant submit additional evidence to
establish his claim. It also requested that the employing establishment submit any factual and
medical evidence related to appellant’s noise exposure.
In a letter dated December 11, 2012, Mr. Stanley stated that from September 1978
through June 1996 appellant worked in a sheet metal shop at the depot where he would have
been exposed to the normal sounds of working in a shop such as from shears, air hammers, drill
presses, saws, grinders, etc. He noted that from July 1996 until his retirement on November 30,
2011, appellant worked in business management, in the barracks. Mr. Stanley also indicated that
appellant was exposed to almost no noise as the barracks were empty 75 percent of the time, and
even when being used, the noise levels were similar to that of a quiet office environment. He
explained that, because appellant worked in the sheet metal shop so long ago, any noise level
records were no longer available. Mr. Stanley advised that, when appellant worked in the sheet
metal shop, he was enrolled in the hearing conservation program. He explained that there were
no noise survey reports for the barracks as they were never identified as noisy. Mr. Stanley
indicated that employees in the shop areas worked for eight hours per day with two 15-minute
breaks and a one-half hour lunch break each day. He indicated that a variety of forms of hearing
protection were provided. Mr. Stanley enclosed appellant’s medical records, including hearing
conservation data and audiograms. He noted that appellant retired on November 30, 2011.
Accompanying Mr. Stanley’s letter were audiograms and employing establishment
hearing conservation data from 1978 to 1995. A September 12, 1994 audiogram indicated that
there was a significant threshold shift from a May 24, 1983 reference audiogram. A
September 11, 1995 audiogram indicated that there was no significant threshold shift.
On March 28, 2013 OWCP referred appellant for a second opinion. It provided a
statement of accepted facts, a set of questions, and the medical record to Dr. Philip G. Liu, a
Board-certified otolaryngologist.
On April 5, 2013 OWCP accepted the claim for bilateral hearing loss.
In a report dated April 25, 2013, Dr. Liu described appellant’s history of injury and
treatment, and determined that he had moderate sensorineural hearing loss most likely 70 percent
secondary to noise exposure at the employing establishment. He advised that other factors
included noise exposure in the Navy, age, and genetic factors. Dr. Liu recommended hearing
and noise protection. An audiogram performed for him at testing levels of 500, 1000, 2000, and
3000 hertz revealed in the right ear losses of 15, 25, 30, and 35 decibels; and in the left ear losses
of 20, 20, 35, and 45 decibels.

2

The employing establishment forwarded to OWCP an August 16, 2013 claim for
compensation (Form CA-7) which claimed a schedule award.
In a September 30, 2013 report, an OWCP medical adviser determined that appellant had
1.88 percent right ear hearing loss, 7.5 percent left ear hearing loss, and 2.82 percent binaural
hearing loss under OWCP standard formula for determining hearing loss. The medical adviser
recommended that hearing aids not be authorized.
In a letter dated January 8, 2014, OWCP advised appellant that additional evidence was
needed to support his claim. It explained that the evidence was not sufficient to support that the
claim was timely filed. The employing establishment was provided a copy of the letter and why
it was requested to provide any medical treatment notes.2
In a January 14, 2014 response, appellant indicated that the last time he was exposed to
hazardous noise was June 1996. He explained that he related it to his work exposure on
September 28, 2012 when he filed his claim. Appellant noted that a fellow coworker and a
supervisor told him he had a problem hearing. He indicated that he had to ask people to speak
louder and repeat it back to him. Appellant also explained that he had read the employing
establishment’s response and noted that he also worked overtime on a regular basis. He noted
that, while he worked in the barracks beginning in 1996, it was not a quiet environment.
Appellant explained that he was a reserve component training coordinator, and the barracks were
full for many years, particularly after the attacks of September 11, 2001. He indicated that
billeting occurred there and he spent many hours in the shop to include training and use of:
generators; sheet metal, welding, sandblasting, machine shop, and working with the soldiers to
evaluate their training. Appellant noted that it was anything but a quiet environment and he was
exposed to noise right up until the date he retired.
In a January 30, 2014 letter to the employing establishment, OWCP provided a copy of
appellant’s response to the development letter and requested comments. It also inquired as to
whether any of the employing establishment hearing examinations indicated hearing loss. The
employing establishment was allotted 15 days to submit the requested evidence. No response
was received.
In a telephone call memorandum dated March 14, 2014, OWCP noted that appellant was
upset with the status of his claim. Appellant noted that he became aware of his hearing loss on
April 23, 2013 when he went to see his doctor. OWCP noted that he indicated a different date on
his claim form.
By decision dated March 25, 2014, OWCP rescinded the prior approval of appellant’s
claim. It found that the decision was incorrect, and denied his claim on the basis that his claim
for hearing loss was untimely filed. OWCP found that appellant’s claim was not timely filed
within three years of the date of injury or that his immediate supervisor had actual knowledge
within 30 days of the day of injury. It found that the date of his injury was June 14, 2006, and
that his claim for compensation was not filed until September 28, 2012. OWCP further found
2

The employing establishment did not respond other than to provide the copy of the previously submitted letter
dated December 11, 2012.

3

appellant’s statements that he was exposed to loud noise until his retirement and that he was not
aware of his hearing loss until September 2, 2012 were not credible. It advised that the
employing establishment’s statement that he was exposed to loud noise until 1996 was accepted
as factual.
LEGAL PRECEDENT
Pursuant to section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his or her own motion or on application.3 The
Board has upheld OWCP’s authority under this section to reopen a claim at any time on its own
motion and, where supported by the evidence, set aside or modify a prior decision and issue a
new decision.4 The Board has noted, however, that the power to annul an award is not arbitrary
and that an award for compensation can only be set aside in the manner provided by the
compensation statute.5
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud. Once OWCP
accepts a claim, it has the burden of justifying termination or modification of compensation
benefits. This also holds true where OWCP later decides that it erroneously accepted a claim.6
OWCP bears the burden of justifying rescission of acceptance on the basis of new
evidence, legal argument and/or rationale.7 Probative and substantial positive evidence8 or
sufficient legal argument9 must establish that the original determination was erroneous. OWCP
must also provide a clear explanation of the rationale for rescission.10
Section 8122(a) of FECA provides that an original claim for compensation for disability
or death must be filed within three years after the injury or death.11 In a case of occupational
disease, the Board has held that the time for filing a claim begins to run when the employee first
becomes aware or reasonably should have been aware, of a possible relationship between his
3

5 U.S.C. § 8128.

4

See John W. Graves, 52 ECAB 160, 161 (2000). See 20 C.F.R. § 10.610.

5

Delphia Y. Jackson, 55 ECAB 373 (2004).

6

See V.C., 59 ECAB 137 (2007).

7

See John W. Graves, supra note 4; Alice M. Roberts, 42 ECAB 747, 753 (1991).

8

See Michael W. Hicks, 50 ECAB 325, 329 (1999).

9

See, e.g., Beth A. Quimby, 41 ECAB 683, 688-89 (1990).

10

See V.C., supra note 6.

11

5 U.S.C. § 8122(a).

4

condition and his employment.12 When an employee becomes aware or reasonably should have
been aware that he or she has a condition which has been adversely affected by factors of his or
her federal employment, such awareness is competent to start the limitation period even though
he or she does know the precise nature of the impairment or whether the ultimate result of such
affect would be temporary or permanent.13 The Board has held that, if an employee continues to
be exposed to injurious working conditions after such awareness, the time limitation begins to
run on the last date of this exposure.14 Also, a claim would be regarded as timely under section
8122(a)(1) if the immediate supervisor, another employing establishment official or an
employing establishment physician or dispensary had actual knowledge of the alleged
employment-related injury within 30 days.15 This provision removes the bar of the three-year
time limitation if met.16 The knowledge must be such as to put the immediate supervisor
reasonably on notice of appellant’s injury.17 Additionally, section 8122(a)(2) provides that the
claim would be deemed timely if written notice of injury or death was provided within 30 days
after the injury pursuant to 5 U.S.C. § 8119.18 Section 8122(d)(3) provides that time limitations
for filing a claim do not run against any individual whose failure to comply is excused by the
Secretary on the grounds that such notice could not be given because of exceptional
circumstances.19
The Board has also held that a program of annual audiometric examinations conducted by
an employing establishment in conjunction with an employee testing program was sufficient to
constructively establish actual knowledge of a hearing loss such as to put the immediate
supervisor on notice of an on-the-job injury.20 OWCP’s procedures provide:
“If an agency, in connection with a recognized environmental hazard, has an employee
testing program and a test shows the employee to have positive findings this should be
accepted as constituting actual knowledge. For example, an agency where employees
may be exposed to hazardous noise levels may give annual hearing tests for exposed
employees. A hearing loss identified on such a test would constitute actual knowledge on
the part of the agency of a possible work injury.”21
12

Duet Brinson, 52 ECAB 168 (2000).

13

Larry E. Young, 52 ECAB 264 (2002); Duet Brinson, id.; see also Leo Ferraro, 47 ECAB 350 (1996).

14

See L.C., 57 ECAB 740 (2006); Garyleane A. Williams, 44 ECAB 441 (1993); Charlene B. Fenton, 36 ECAB
151 (1984).
15

5 U.S.C. § 8122(a)(1); Larry E. Young, supra note 13.

16

Hugh Massengill, 43 ECAB 475 (1992).

17

Kathryn A. Bernal, 38 ECAB 470 (1987).

18

5 U.S.C. § 8122(a)(2).

19

Id. at § 8122(d)(3).

20

See James A. Sheppard, 55 ECAB 515 (2004).

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(a)(3)(c) (March 1993).

5

ANALYSIS
The Board finds that OWCP improperly rescinded appellant’s claim.
In this case, OWCP accepted appellant’s claim on April 15, 2013 for bilateral hearing
loss. It was in the process of determining his eligibility for a schedule award when it determined
that additional evidence was needed to support whether his claim was timely filed under the
applicable guidelines. After additional development, OWCP issued a decision on March 25,
2014, in which it found that appellant’s claim was not timely filed as he did not file his claim
within three years of the date of injury or that his immediate supervisor did not have actual
knowledge within 30 days of the day of injury. It specifically found that the date of injury was
June 14, 2006, and that because his claim was not filed until September 28, 2012, it was not
timely.
The Board finds that OWCP has not established that appellant’s claim was untimely filed.
As noted, if an employee continued to be exposed to injurious working conditions, the time
limitation begins to run on the last date of this exposure.22 In a January 14, 2014 letter, appellant
indicated that he continued to be exposed to noise until he retired on November 30, 2011. He
explained that, while he worked in the barracks beginning in 1996, it was not a quiet
environment, particularly after the September 11, 2001 attacks. Appellant indicated that billeting
occurred there and he spent many hours in the shop to include training and use of: generators;
sheet metal, welding, sandblasting, machine shop, and working with the soldiers to evaluate their
training. On January 30, 2014 OWCP requested comments from the employing establishment
but no response was received. Appellant’s January 14, 2014 letter coupled with the lack of
rebuttal from the employing establishment suggests that he had some workplace noise exposure
until he retired on November 30, 2011.23 As noted above, probative and substantial positive
evidence or sufficient legal argument must establish that the original determination was
erroneous.24 Appellant’s assertion of continuing exposure coupled with the lack of any evidence
from the employing establishment refuting any continued noise exposure does not support
OWCP’s rescission determination. The Board finds there is probative evidence that appellant’s
claim for compensation was timely filed.25
Furthermore, as explained, a program of annual audiometric examinations conducted by
an employer may be sufficient to constructively establish actual knowledge of a hearing loss
such as to put the immediate supervisor on notice of an on-the-job injury.26 The employing
establishment provided hearing conservation data from 1978 to 1995. In particular, a
22

See supra note 14.

23

See H.G., 59 ECAB 552 (2008) (an employee’s statement regarding the circumstances surrounding an injury is
of great probative value and will be accepted unless refuted by persuasive evidence).
24

See supra notes 8 and 9.

25

See William F. Dotson, 47 ECAB 253 (1995) (where Board found that claim forms signed by appellant
established a timely filing of his claim and that OWCP provided insufficient justification for rescinding acceptance
of the claim, as being untimely filed).
26

Supra notes 20 and 21.

6

September 12, 1994 employing establishment’s audiogram indicated that there was a significant
threshold shift from a May 24, 1983 reference audiogram. The record does not indicate that
OWCP considered whether this shows actual knowledge under section 8122(a)(1).27
As he filed his claim on September 28, 2012, which was within three years of his last
exposure on November 30, 2011, the date of his retirement, his claim was timely filed. Under
these circumstances, the Board finds that there is sufficient reliable and probative evidence
establishing that appellant’s claim for compensation was timely filed and OWCP did not meet its
burden of proof to rescind his claim for bilateral hearing loss.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to rescind appellant’s claim
for bilateral hearing loss.

27

See A.A., Docket No. 14-764 (issued July 28, 2014) (the Board found the claim timely filed where appellant
participated in an annual hearing conservation program and where audiograms performed in 1990 and 1991 seemed
to demonstrate a significant shift of appellant’s hearing; the Board found that the evidence was sufficient to establish
that the employing establishment had actual knowledge within 30 days of the date of last exposure that appellant
believed that he had hearing loss due to his employment). Compare P.M., Docket No. 07-723 (August 2, 2007)
(where the Board affirmed OWCP’s rescission of appellant’s claim for hearing loss on the grounds that the claim
was not timely filed pursuant to 5 U.S.C. § 8122(a); the Board found that the evidence did not show continuing
noise exposure and that the record did not establish that the employing establishment had constructive knowledge of
appellant’s hearing loss as the employing establishment indicated that it had no records showing that appellant was
part of the employing establishment’s hearing conservation program).

7

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 10, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lakewood, CA, Employer
__________________________________________

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

Docket No. 17-1508
Issued: March 28, 2018

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 June 28, 2017 appellant filed a timely appeal from a May 15, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
the last merit decision, dated May 12, 2016, to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
OWCP accepted that on February 16, 2000 appellant, then a 39-year-old custodian, jumped
forward to prevent a mail case from falling on a coworker, and sustained a lumbar sprain and a
1

5 U.S.C. § 8101 et seq.

lateral collateral ligament sprain of the left knee. He stopped work on that day and did not return.
OWCP paid appellant compensation for total disability. It placed his case on the periodic rolls
effective April 22, 2001.
Appellant was first followed by Dr. David M. Wall, an attending Board-certified
orthopedic surgeon. Dr. Wall provided chart notes from March 2000 onward finding appellant
totally disabled from work due to pain and restricted motion in the cervical spine, lumbar spine,
and left knee. He prescribed physical therapy, medication, and periodic injections.2
On August 10, 2000 the employing establishment obtained a fitness-for-duty report from
Dr. Milton E. Ashby, a Board-certified orthopedic surgeon, who opined that the accepted injuries
had ceased without residuals.
To assess the nature and extent of appellant’s ongoing condition, OWCP obtained a second
opinion on June 26, 2001 from Dr. H. Harlan Bleecker, a Board-certified orthopedic surgeon.
Dr. Bleecker reviewed the medical record and a statement of accepted facts (SOAF). On
examination, he found limited motion of the left shoulder, cervical spine, and lumbar spine.
Dr. Bleecker noted that appellant ambulated with a splayed, cautious gait, and exhibited signs of
symptom magnification. He opined that appellant remained temporarily totally disabled from
work due to the accepted injuries.
On February 26, 2014 OWCP obtained an updated second opinion report from Dr. G.B.
Ha’Eri, a Board-certified orthopedic surgeon. Dr. Ha’Eri reviewed the medical record and a
SOAF. He described the mechanism of injury as appellant having moved forward to prevent boxes
of mail from falling on a coworker. Dr. Ha’Eri noted that appellant had not worked since
approximately 2002. On examination, he noted a full range of motion of the cervical spine, limited
lumbar flexion, a full range of left shoulder motion, and a stable left knee. Dr. Ha’Eri diagnosed
cervical and lumbar strains superimposed on preexisting degenerative disc disease, a left shoulder
strain superimposed on an old injury, and a left knee strain with possible degenerative joint disease.
He opined that the accepted injuries had ceased without residuals many years before. Dr. Ha’Eri
explained that appellant’s current condition was due to degenerative disc disease and degenerative
joint disease, complicated by morbid obesity and deconditioning. He opined that appellant was
able to perform full-time light duty, with lifting, pushing, and pulling limited to 20 pounds.
By notice dated March 19, 2014, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits, based on Dr. Ha’Eri’s opinion that the accepted injuries had
ceased without residuals. It afforded him 30 days to submit additional evidence or argument.
Appellant responded by April 7, 2014 letter in which he asserted that he remained totally
disabled from work due to the accepted injuries. He argued that Dr. Ha’Eri’s report was not based
on an accurate factual or medical history.

2

Appellant participated in physical therapy in April 2000 to April 2001.

2

By decision dated April 29, 2014, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that date, based on Dr. Ha’Eri’s opinion as the weight of the
medical evidence.
In a May 14, 2014 appeal form received by OWCP on May 20, 2014, appellant requested
an oral hearing before a representative of OWCP’s Branch of Hearings and Review.3 During the
hearing, held on December 9, 2014, he contended that Dr. Ha’Eri misstated the circumstances of
his injury as he confused a box of mail with a case of mail. Alternatively, appellant argued that
Dr. Ha’Eri’s opinion was in conflict with that of Dr. Bleecker. He submitted further medical
evidence.
In a November 24, 2014 report, Dr. Wall diagnosed lumbar degenerative disc disease, left
rotator cuff impingement and arthritis, a lumbosacral sprain, left L4-5 radiculopathy, and morbid
obesity. He found appellant totally disabled from work.
In a November 19, 2014 report, Dr. Basimah Khulusi, an attending Board-certified
physiatrist, contended that Dr. Ha’Eri’s report was defective as he noted that appellant had no work
exposures after 2002, although appellant had not worked since February 16, 2000. She also argued
that Dr. Ha’Eri wrongly noted that a box of mail fell toward appellant, whereas the appropriate
term was a case of mail. Dr. Khulusi opined that appellant remained totally disabled for work as
the lumbar sprain and left knee sprain caused morbid obesity and deconditioning.
By decision dated February 26, 2015, an OWCP hearing representative affirmed the
April 29, 2014 decision. She found that Dr. Ha’Eri’s opinion continued to represent the weight of
the medical evidence in the case as it was well rationalized and based on a complete and accurate
factual and medical history. In contrast, Dr. Khulusi’s reports failed to explain how and why
appellant would remain totally disabled from work due to the accepted lumbar and left knee strains.
On April 27, 2015 appellant requested reconsideration. He provided an April 16, 2015
report from Dr. Khulusi, in which she contended that Dr. Ha’Eri’s opinion was defective as he
failed to address the effect of deconditioning on appellant’s recovery. Dr. Khulusi also asserted
that OWCP should expand appellant’s claim to accept deconditioning and aggravation of morbid
obesity.
By decision dated July 22, 2015, OWCP denied modification of its prior decision, as
Dr. Khulusi’s April 16, 2015 report was insufficiently rationalized to outweigh Dr. Ha’Eri’s
opinion. It found that Dr. Khulusi did not provide medical rationale explaining how and why the
accepted injuries continued to disable appellant from work or required additional treatment.

3

On May 26, 2014 appellant claimed a recurrence of disability (Form CA-2a) commencing April 29, 2014. OWCP
responded by June 2, 2014 letter that, if he disagreed with the April 29, 2014 termination decision, he should exercise
his appeal rights. It noted that appellant had requested a hearing before a representative of its Branch of Hearings and
Review.

3

In a September 30, 2015 letter, appellant requested reconsideration. He provided a
September 24, 2015 report from Dr. Khulusi, who opined that the accepted February 16, 2000
employment incident caused lumbar radiculitis that continued to totally disable him from work.
By decision dated December 21, 2015, OWCP denied modification of its prior decision. It
found that Dr. Khulusi’s September 24, 2015 report presented no new evidence that would
outweigh Dr. Ha’Eri’s opinion.
On April 4, 2016 appellant requested reconsideration. He contended that Dr. Ha’Eri’s
February 26, 2014 second opinion report had become “stale” and should no longer be accorded
the weight of the medical evidence. Appellant submitted a March 23, 2016 duty status report
(Form CA-17) from Dr. Khulusi which noted work restrictions, with lifting limited to 20 pounds.
By decision dated May 12, 2016, OWCP denied modification of its December 21, 2015
decision. It found that the March 23, 2013 Form CA-17 was insufficient to establish that the
accepted injuries were disabling or required additional treatment on and after April 29, 2014.
OWCP noted that Dr. Ha’Eri’s second opinion report was prepared on February 26, 2014, less
than two months prior to the April 29, 2014 termination decision.
On July 1, 2016 appellant requested reconsideration. He contended that OWCP should
reinstate his wage-loss compensation and medical benefits as Dr. Ha’Eri’s February 26, 2014
report “expired” on February 26, 2016.
By decision dated July 11, 2016, OWCP denied appellant’s request for reconsideration of
the merits of his claim, as he did not provide new and relevant evidence, or legal argument.
In a letter dated November 17, 2016, appellant again requested reconsideration. He
submitted a March 23, 2016 report from Dr. Khulusi, who provided a history of the February 16,
2000 injuries. Dr. Khulusi related appellant’s symptoms of lumbar pain with radiation into both
lower extremities. She noted findings and appellant’s status. Dr. Khulusi diagnosed severe lumbar
strain, lumbar stenosis, and lumbar radiculopathy. She noted that appellant would continue to see
Dr. Wall for medication and trigger point injections. Dr. Khulusi also provided a November 23,
2016 narrative report and Form CA-17, which related appellant’s continuing lumbar pain and
radiculopathy. She provided new diagnoses of left knee strain and severe deconditioning.
Appellant also submitted a duplicate of Dr. Khulusi’s March 23, 2016 Form CA-17.
In a December 1, 2016 report, Dr. Khulusi contended that Dr. Ha’Eri’s February 26, 2014
report was erroneous as he opined that appellant’s accepted injuries had resolved long before,
although Dr. Bleecker had found appellant totally disabled from work on June 26, 2001. She
therefore asserted that there was a conflict of medical evidence between Dr. Ha’Eri and
Dr. Bleecker which required resolution by an impartial medical examiner.
Appellant submitted an October 26, 2014 lumbar magnetic resonance imaging (MRI) scan
report, which demonstrated posterior disc bulges at L3-4, L4-5, and L5-S1 with mild-to-moderate
central canal stenosis, mild lumbar degenerative disc disease, a suspected hemangioma within the
L1 vertebral body, mild hyperlordosis of the distal lumbar spine, and congenital lumbar stenosis.

4

By decision dated February 16, 2017, OWCP denied appellant’s request for
reconsideration, as the evidence submitted was insufficient to warrant a merit review. It found
that Dr. Khulusi’s report was irrelevant as it did not address appellant’s condition on and after
April 29, 2014.
On February 25, 2017 appellant again requested reconsideration of the merits of his claim.
In support of his request, he submitted a copy of an October 26, 2014 MRI scan report previously
of record, a February 28, 2017 MRI scan report, and a statement in which he alleged that OWCP
had refused to review the October 26, 2014 MRI scan report.
A February 28, 2017 lumbar MRI scan report showed a small annular fissure at L3-4,
multilevel broad-based disc bulges at L3-4, L4-5, and L5-S1, and mild bilateral neural foraminal
stenosis at L4-5.
By decision dated May 15, 2017, OWCP denied reconsideration, finding that appellant did
not submit new and relevant evidence, or legal argument sufficient to warrant reopening the merits
of his claim. It found that the October 26, 2014 and February 28, 2017 MRI scan reports were
irrelevant as they did not address the critical issue of continuing disability from work on and after
April 29, 2014.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
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.5 To be entitled to a merit review of
an OWCP decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.6 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.7
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.8 He or she needs only
to submit relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether OWCP
5 U.S.C. § 8128(a). Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.”
4

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

Helen E. Tschantz, 39 ECAB 1382 (1988).

9

See supra note 5. See also Mark H. Dever, 53 ECAB 710 (2002).

5

properly applied the standards set forth at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim.
OWCP accepted that on February 16, 2000 appellant sustained a lumbar sprain and a lateral
collateral ligament sprain of the left knee when he jumped forward to prevent a mail case from
falling on a coworker. It paid him compensation for total disability beginning in March 2000. On
April 29, 2014 OWCP terminated appellant’s wage-loss compensation and medical benefits,
effective April 29, 2014, based on the February 26, 2014 report of Dr. Ha’Eri, a second opinion
physician. It affirmed the termination by decision dated February 26, 2015. Thereafter, OWCP
denied modification of the termination decision on July 22 and December 21, 2015, and
May 12, 2016.
On November 22, 2016 appellant again requested reconsideration. He provided March 23,
November 23, and December 1, 2016 reports from Dr. Khulusi who opined that he was totally
disabled from work due to lumbar radiculopathy which she attributed to the accepted February 16,
2000 lumbar sprain. Dr. Khulusi contended that the opinion of Dr. Ha’Eri, a Board-certified
orthopedic surgeon and second opinion physician, was factually inaccurate and in conflict with
that of Dr. Bleecker, a Board-certified orthopedic surgeon and prior second opinion physician in
the case. Appellant also submitted an October 26, 2014 lumbar MRI scan report. OWCP denied
reconsideration by decision dated February 16, 2017, as Dr. Khulusi’s reports were irrelevant as
they were comprised of the same arguments previously noted in prior requests for reconsideration
without adding any additional substantive evidence supported with objective medical examination
findings and did not specifically address the termination issue.
Appellant again requested reconsideration on February 25, 2017. He alleged that OWCP
failed to review the October 26, 2014 MRI scan report and provided a second copy. Appellant
also submitted a February 28, 2017 lumbar MRI scan report. OWCP denied reconsideration by
decision dated May 15, 2017 as the MRI scan reports alone are were insufficient as they are only
diagnostic tools and as such irrelevant. As well, appellant failed to address the termination issue.
Neither MRI scan report submitted on reconsideration specifically addressed the critical
issue of whether appellant remained totally disabled for work and in need of additional medical
treatment on and after April 29, 2014 due to the accepted lumbar sprain and a lateral collateral
ligament sprain of the left knee. Similarly, appellant’s argument that OWCP had refused to review
the October 26, 2014 lumbar MRI scan report was not relevant to the termination issue. As such,
these documents are irrelevant to the claim and do not comprise a basis for reopening the case on
its merits.11

10

Annette Louise, 54 ECAB 783 (2003).

11

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

6

A claimant may be entitled to a merit review by submitting relevant and pertinent new
evidence or argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 15, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 28, 2018
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

7


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

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

Docket No. 07-2318
Issued: March 12, 2008

Case Submitted on the Record

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

JURISDICTION
On September 11, 2007 appellant filed a timely appeal from the November 3, 2006 and
August 27, 2007 decisions of the Office of Workers’ Compensation Programs denying his claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has established that he sustained an injury in the
performance of duty on or about May 5, 2003, as alleged.
FACTUAL HISTORY
On September 30, 2005 appellant, then a 49-year-old mail handler, filed an occupational
disease claim (Form CA-2), alleging that he had a chronic back condition that he related to his
federal employment on May 5, 2003. He noted that he had not worked since May 5, 2003
because of his condition and that he had injured his back in the course of his work on

October 31, 1998. Appellant stated that he had disc displacement, degeneration and desiccation.
The employing establishment contoverted appellant’s claim, noting that he had not worked since
May 3, 2003 and that he did not notify his supervisor of his injury until October 4, 2005.
On November 7, 2005 the Office requested that appellant provide additional factual and
medical information related to his claim.
On December 5, 2005 appellant provided an August 22, 2005 note from Dr. David Stein,
a Board-certified anesthesiologist and pain specialist, who began treating appellant on
February 1, 2005 for low back pain caused by disc displacement and disc degeneration. In a
treatment report dated November 23, 2005, Dr. Stein stated that appellant had a history of lower
back pain and lower extremity pain starting in 1998. Appellant reported that the pain began after
heavy lifting. He reported receiving prior chiropractic treatment and epidural steroid injections
for back pain. A magnetic resonance imaging (MRI) scan conducted on February 4, 2005
showed a disc bulge at L4-5 and a paracentral protrusion at L5-S1 that was producing a mass
effect on the dural sac exiting the right S1 nerve root. On April 4, 2005 Dr. Stein performed a
posterolateral disc decompression at L5-S1.
By decision dated January 3, 2006, the Office denied appellant’s claim on the grounds
that he had not established “that the event(s) occurred as alleged.”
On January 27, 2006 appellant requested an oral hearing. He submitted an employee
statement dated September 30, 2005 indicating that his condition started on May 5, 2003.
Appellant stated that his duties, including repetitive lifting for six hours a day, six days a week
on the workroom floor, caused his lumbosacral strain with vertebral subluxation.
At the oral hearing, held September 14, 2006, appellant stated that he sustained an
employment-related spinal subluxation in 1998 and had permanent restrictions against lifting
more than 25 pounds. During a tour in May 2003, he was repeatedly bending over and reaching
into a plastic hamper to lift out tubs of mail for sorting. At the end of the tour, appellant felt pain
in his lower back radiating down his legs. After being incapacitated at home for two days, he
reported his injury to the injury compensation office, which forwarded claim forms. Appellant
completed the paperwork and mailed it to his supervisor, but never received any correspondence
in return. An MRI scan done shortly after the 2003 incident showed a disc protrusion. Appellant
was treated conservatively for a few months with epidural shots. He underwent surgeries in
August 2003 and February 2005.
In conjunction with the hearing, appellant submitted several medical records relating to
his claim. A May 16, 2003 MRI scan revealed moderate degenerative disc changes and right
paracentral focal protrusion at L5-S1 and mild degenerative disc changes in the other lumbar
discs. On September 11, 2003 Dr. Richard Cattey certified that appellant was under his care
from August 25 to September 11, 2003.
He released appellant to regular duty on
September 13, 2003. In a note dated September 24, 2005, Dr. John Cafaro, a family physician,
stated that appellant was off of work from June to December 2004 because of an ongoing back
problem.

2

On February 1, 2005 Dr. Stein stated that appellant had a history of low back and lower
left extremity pain beginning in 1998 that was caused by heavy lifting. He reported that
appellant had a blood clot in his leg following a laparoscopic surgery that disabled him
commencing September 2004. Appellant was on anticoagulant medication because of his history
of deep vein thrombosis. He also had a prior history of muscle spasms. Based on Dr. Stein’s
review of appellant’s 2003 MRI scan and the physical examination findings, he concluded that a
disc was the likely cause of appellant’s current lower back pain. He ordered an MRI scan,
conducted February 4, 2005, which showed that the right paracentral disc protrusion at L5-S1
and the generalized bulge at L4-5 had become more prominent since 2003. It also showed mild
bulges at L2-3 and L3-4.
On February 15, 2005 Dr. Stein opined that appellant’s lower back pain was likely caused
by the L5-S1 disc protrusion because he had more pain with forward flexion than with extension.
He recommended a lateral extradural disc decompression to resolve the pain. On April 4, 2005
Dr. Stein performed the surgery. On April 21, 2005 he reported that appellant had low back pain
of 5 out of 10, radiating into his lower extremities. Dr. Stein opined that appellant’s lower back
was stable following decompression and that his lower extremity pain might be related to a
recurrent blood clot. An ultrasound study, conducted on April 22, 2005, revealed that appellant’s
lower extremity findings were more consistent with a chronic clot in the left lesser saphenone
vein than with a deep vein occlusion.
On September 14, 2005 Dr. Andrew C. Stopczynski, a chiropractor, stated that he had
treated appellant intermittently for lower back pain since 1990, on April 14 and August 20, 2004.
On March 10, 2005 he saw appellant following an insidious onset of moderate low back pain.
Appellant was released after three sessions with only soreness in the right buttock reported.
Dr. Stopczynski stated that, if appellant had not already been off of work, he would have been
disabled from March 8 to 14, 2005 due to back and leg pain. On August 12, 2005 appellant
reported that he had undergone a disc decompression surgery in April 2005, with several months
of physical therapy afterwards. He was not satisfied with the surgery and therapy because of
ongoing low back pain and the onset of upper back pain. Dr. Stopczynski submitted Family
Medical Leave Act certification forms dated April 25, 2003 to January 3, 2006. He indicated
that appellant had a chronic condition and was subject to episodes of incapacity, but was not
currently incapacitated.
On August 22, 2005 Dr. Neil Pollack, a Board-certified osteopathic physician
specializing in neurology and pain management, began treating appellant for low back pain and
leg numbness. He diagnosed lumbar disc dysfunction and muscle spasm. Dr. Pollack prescribed
stretching and exercise. On November 30, 2005 he released appellant to return to work on
December 12, 2005 with permanent restrictions.
On October 13, 2006 the employing establishment commented on appellant’s hearing
testimony. Its records indicated that he was not at work on May 5, 2003 and that no supervisory
report of injury was received around that time. The injury compensation office had no record of
an injury being reported in 2003. The first record of contact related to the alleged injury was in
2005.

3

By decision dated November 3, 2006, the Office hearing representative affirmed the
Office’s denial of appellant’s claim. Based on appellant’s testimony, she reviewed his claim as a
traumatic injury rather than occupational disease. The Office hearing representative found that
appellant did not establish that the May 5, 2003 employment incident occurred, as alleged. She
stated that the record did not support appellant’s testimony that he notified the employing
establishment of his traumatic injury in 2003. The Office hearing representative also noted that
the medical records from 2003 made no mention of a traumatic injury in May 2003.
On December 18, 2006 appellant requested reconsideration and submitted new medical
evidence. On November 27, 2006 Dr. Pollack stated that appellant injured his back in 1998 and
then reinjured it in May 2003. He began treating appellant in 2005 and released him from care
when he reached maximum medical improvement with permanent restrictions.
On
November 16, 2006 Dr. Stein stated that appellant had a history of lower back and left lower
extremity pain caused by heavy lifting at work in 1998.
In a June 4, 2003 report, Dr. James Cain, a Board-certified orthopedic surgeon, evaluated
appellant for low back pain radiating into his legs. He noted that appellant had experienced
persistent and worsening back pain from the time of his 1998 work injury. Dr. Cain stated that
appellant was developing bilateral leg pain and tingling, left greater than right, in the L5
distribution. On examination, he found a positive leg raise test on the left at 80 degrees and a
negative test on the right. Dr. Cain reviewed appellant’s MRI scan and noted degenerative
changes from L3 to the sacrum, especially at L5-S1, where there were modic and plate changes.
Appellant had a right-sided disc herniation at L5-S1 that was deflecting the S1 nerve root. At
L4-5 he had moderate spinal stenosis, more prominently on the left. Dr. Cain diagnosed lumbar
spinal stenosis at L4-5 with multilevel lumbar degenerative disc disease, most severely at L5-S1.
He recommended epidural steroid injections to reduce appellant’s nerve pain.
On June 10, 2003 Dr. Anil Dogra, a Board-certified anesthesiologist, reported that
appellant’s low back pain began in 1998 after he bent his back too much to pick something up.
From that time, appellant experienced intermittent backaches and left lower extremity pain.
Dr. Dogra reviewed appellant’s MRI scan and noted the L5-S1 disc herniation. He stated that it
was interesting that appellant’s disc protrusion was on a different side than his left-side
symptoms. Dr. Dogra administered a steroid injection.
On May 4, 2007 Dr. Stein completed a “Practitioner’s Report on Accident of Industrial
Disease in Lieu of Testimony.” He referred to his medical reports for the work history and
diagnosis sections of the report. By checking a box, Dr. Stein indicated that appellant’s
employment caused his disability starting on October 31, 1998 and May 5, 2003. He indicated
that appellant had permanent disability as a result of his employment injury. Dr. Stein stated that
appellant had a five percent total disability for the disc decompression at L5-S1 done on
April 4, 2005.
By decision dated August 27, 2007, the Office denied modification of the hearing
representative’s November 3, 2006 decision. The Office found that the medical evidence was
insufficient to establish the claim as it was not adequately rationalized or probative.

4

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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; and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.2
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether “fact of injury” has been
established. “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 is alleged to have occurred. The second component of “fact of injury”
is whether the incident caused a personal injury and, generally, this can be established only by
medical evidence.3
An alleged work incident does not have to be confirmed by eyewitnesses in order to
establish that an employee sustained an injury in the performance of duty, but the employee’s
statement must be consistent with the surrounding facts and circumstances and his subsequent
course of action. A consistent history of the injury as reported on medical reports, to the
claimant’s supervisor and on the notice of injury can also be evidence of the occurrence of the
incident. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may cast doubt on an employee’s statements in determining whether he has
established a prima facie case. The employee has the burden of establishing the occurrence of
the alleged injury at the time, place and in the manner alleged, by a preponderance of the
reliable, probative and substantive evidence.4 An employee has not met this burden when there
are such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.5
However, an employee’s statement alleging that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.6
When determining whether an employment incident caused the claimant’s diagnosed
condition, the Office generally relies on the rationalized medical opinion of a physician.7 To be
1

5 U.S.C. §§ 8101-8193.

2

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Ellen L. Noble, 55 ECAB 530 (2004).

4

John J. Carlone, 41 ECAB 354 (1989).

5

Louise F. Garnett, 47 ECAB 639 (1996).

6

Constance G. Patterson, 41 ECAB 206 (1989).

7

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

5

rationalized, the opinion must be based on a complete factual and medical background of the
claimant8 and must be one of reasonable medical certainty,9 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.10
ANALYSIS
The Office did not accept that an employment incident occurred in May 2003 or that
appellant sustained a traumatic injury as a result of the alleged incident.11 Therefore, the issues
are whether appellant has established the employment incident as alleged and whether he
sustained a compensable injury as a result of that incident.
On appellant’s September 30, 2005 claim form he provided no details about the incidents
or factors of his employment that allegedly caused his low back condition. He stated only that he
had originally injured his back in 1998 and that he had not worked since May 5, 2003 because of
his condition. Prior to appellant’s September 14, 2006 oral hearing, he submitted a
September 30, 2005 employee statement indicating that he developed a lumbosacral strain with
vertebral subluxation because of repetitive lifting for six hours per day, six days per week. He
stated that his condition began on May 5, 2003.
At his hearing, appellant stated that he reinjured his back during a work tour in
May 2003, while bending over to lift tubs of mail out of a plastic hamper. He was working by
himself. At the end of his tour, appellant realized that he must have done something to his back
because he felt pain in his lower back radiating down into his legs. He was incapacitated for two
days, after which he contacted the employing establishment’s injury compensation office and
requested paperwork to file a claim. Appellant mailed the completed forms to his supervisor, but
never received confirmation that they had been received.
The employing establishment controverted appellant’s statement of events. Appellant’s
supervisor noted that appellant stopped working on May 3, 2003, two days before the injury
allegedly occurred. The supervisor further stated that he was not informed of the alleged injury
until October 4, 2005. The employing establishment reported that the injury compensation office
had no record of contact with appellant in 2003 and that there was no supervisory report of the
injury in its records, indicating that that appellant’s supervisor had not been notified, as appellant
claimed.

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

John W. Montoya, 54 ECAB 306 (2003).

10

Judy C. Rogers, 54 ECAB 693 (2003).

11

Though appellant filed a claim for an occupational disease, his description of the alleged injury makes it clear
that his alleged injury, which was caused by events within a single workshift, should be evaluated as a traumatic
injury claim. See Larry D. Dunkin, 56 ECAB 220 (2004) (claim filed on the form for occupational disease, CA-2,
was properly considered a traumatic injury because the cause was confined to a single workday).

6

In a report dated June 4, 2003, Dr. Cain stated that appellant reported persistent and
worsening back and leg pain from 1998 forward. He made no mention of a specific date on
which the condition worsened. In a June 10, 2003 report, Dr. Dogra reported that appellant had
experienced intermittent pain in his back and legs following an employment injury in 1998.
Again, appellant did not reference an event on May 5, 2003.
The Board finds that appellant’s statements are insufficient to establish that an
employment incident occurred on or about May 5, 2003, as alleged. Appellant’s initial
descriptions of the May 2003 employment incident were vague and lacking in any detail as to the
circumstances of his injury. At his oral hearing, he was unclear about the exact date of his
injury, but provided details as to the circumstances surrounding the incident, including reporting
the incident to the employing establishment. The Board notes that the employing establishment
presented evidence that appellant could not have sustained an employment injury on May 5,
2003 because he did not work after May 3, 2003. Appellant stated that he reported his injury to
the employing establishment’s injury compensation office two days after it occurred, however,
that office had no record of he contacting them about the injury until 2005. He stated that he
mailed injury claim forms to his supervisor in 2003, but never received confirmation that they
had been received. Appellant made no other efforts to contact his supervisor. The employing
establishment stated that no notice of injury was received until October 2005. The medical
evidence from near the time of the alleged employment incident is devoid of reference to any
traumatic injury or work-related aggravation other than the 1998 employment injury. Because
appellant’s statements did not consistently describe the employment incident, were contradicted
by the employing establishment and were not supported by the contemporaneous medical
evidence, the Board finds that serious doubt has been cast on the validity of his claim.
Moreover, the contemporaneous medical evidence does not establish the occurrence of an
employment incident on May 5, 2003. The May 16, 2003 MRI scan report, which revealed a
protrusion at L5-S1 and degenerative disc changes in the lumbar area, did not provide a factual
history or indicate whether the findings were caused by traumatic injury. On June 4, 2003
Dr. Cain, a Board-certified orthopedic surgeon, evaluated appellant for low back pain radiating
into his legs. After reviewing appellant’s MRI scan and performing a physical examination, he
diagnosed lumbar spinal stenosis, L4-5 with multilevel lumbar degenerative disc disease, most
severely at L5-S1. Although Dr. Cain noted that appellant had persistent and increasing back
and leg pain, he made no findings related to the cause of his condition. He did not obtain any
history of an injury on May 5, 2003. On June 10, 2003 Dr. Dogra, a Board certified
anesthesiologist, reported that appellant’s low back pain began in 1998 and appeared
intermittently thereafter. He gave no opinion on the cause of appellant’s spinal condition or any
record of the alleged May 5, 2003 incident.
From February 1 to April 21, 2005, Dr. Stein, a Board-certified anesthesiologist, treated
appellant for a disc protrusion. He stated that appellant’s back problems began with an
employment injury in 1998, but, he did not mention the alleged 2003 employment incident. In a
report dated May 4, 2007, Dr. Stein indicated that appellant’s condition was related to both the
1998 and alleged 2003 incidents. He provided no history of the 2003 event and no rationale as to
how it caused or aggravated appellant’s spinal condition. Dr. Pollack, a Board-certified
osteopathic physician specializing in neurology and pain management, treated appellant for his
back and leg pain from August to November 2005. Like Dr. Stein, he made no mention of the

7

alleged 2003 injury in his initial history or over the course of his treatment. On November 27,
2006 he stated that appellant reinjured his back in May 2003, but provided no details of the
incident or how it impacted appellant’s condition. Dr. Stopczynski, a chiropractor, treated
appellant intermittently from 1990 to the present for his intermittent back pain. In his
September 14, 2005 report, he did not discuss any period of treatment in 2003.
The Board finds that appellant has not met his burden of proof to establish the occurrence
of an employment incident on or about May 5, 2003.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on or about May 5, 2003, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 27, 2007 and November 3, 2006 are affirmed.
Issued: March 12, 2008
Washington, DC

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

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

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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 10-1928
Issued: May 13, 2011

Case Submitted on the Record

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

JURISDICTION
On July 19, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 4, 2010 denying her claim for compensation.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On October 22, 2009 appellant, then a 57-year-old rehabilitation mail clerk, claimed an
occupational disease alleging that her chair and the area where she sat put strain on her neck and
shoulder. She experienced severe pain in her left arm when she raised above shoulder level and
1

5 U.S.C. § 8101 et seq.

sat in an area where drafts were a constant problem. Appellant became aware of her condition
and that it was caused or aggravated by her employment on May 1, 2009. On the reverse side of
the claim form, the employer noted that she had worked limited duty in a rehabilitation
assignment which did not require lifting above the shoulders or raising her arms to perform the
assigned tasks. Appellant did not stop work. In an October 22, 2009 statement, she stated that
she sustained work-related injuries to both shoulders in 2002 and that she had a cervical disc
condition.2 Appellant stated that her chair was given to her in 2005 and was the primary cause of
her current condition.
In a November 6, 2009 letter, the Office informed appellant that the evidence of record
was insufficient to support her occupational disease claim. It noted that the claim appeared
duplicative of previously filed workers’ compensation claims and advised her as to the factual
and medical evidence to submit.
Appellant responded with a December 29, 2009 statement.3 In a November 30, 2009
report, Dr. Samuel J. Chmell, a Board-certified orthopedic surgeon, advised that her work-related
shoulder injuries had deteriorated, particularly on the left side, with her work activities.
Appellant required further evaluation, care and treatment of her shoulders and requested
authorization for an MRI scan of both shoulders.4
By decision dated January 28, 2010, the Office denied appellant’s claim finding that,
while the claimed work factors occurred, the medical evidence did not establish that a diagnosed
medical condition was causally related to the work activities.
On March 26, 2010 appellant requested reconsideration. In a February 18, 2010 letter,
she reiterated that her current shoulder condition stemmed from her previous work-related injury.
Appellant also advised that all the medical evidence was sent.5
In a February 6, 2010 report, Dr. Chmell noted that appellant had a left shoulder rotator
cuff tear, right shoulder rotator cuff strain and lumbar disc herniation that were causally related
to a work injury. He opined that these “injuries/conditions” “predated the May 1, 2009
circumstances in question” and were permanent in nature and symptomatic on a daily basis.
Dr. Chmell stated that, for many years, he had prescribed an ergonomic chair to prevent
appellant’s conditions from deteriorating and allow her to continue to work, but she had not been
provided with appropriate seating at her duty station. He stated that her previously accepted
conditions continued to deteriorate because she did not have appropriate seating and she
continued to work. Dr. Chmell stated that there was no new diagnosis and that this was not a
new injury.
2

The record indicates that appellant has accepted work-related conditions in other claims. These other claims are
not before the Board on the present appeal.
3

Appellant indicated a copy of the magnetic resonance imaging (MRI) scan results of her shoulders was
enclosed; however, this is not of record.
4

Although Dr. Chmell noted that his most recent office note was enclosed, this was not of record.

5

While appellant advised MRI scan reports were enclosed, these are not of record.

2

By decision dated June 4, 2010, the Office denied modification of its January 28, 2010
decision.
LEGAL PRECEDENT
An employee seeking compensation under the Act has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence,6
including that she is an “employee” within the meaning of the Act7 and that she filed her claim
within the applicable time limitation.8 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.9
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.10
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.11 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. 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.12
ANALYSIS
Appellant filed an occupational disease claim on October 22, 2009 and identified prior
work-related injuries to her shoulders and neck. She alleged that the chair she was given in 2005
and the area in which she sat to work caused her accepted work-related conditions to worsen. As
appellant alleged new work exposures in her October 22, 2009 claim, the Office adjudicated the
6

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

7

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
8

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

9

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

10

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

11

D.G., 59 ECAB 734 (2008).

12

Id.

3

claim as a new occupational claim.13 The issue is whether she established a new occupational
injury.
The Office accepted the work factors appellant alleged. The Board finds that the medical
evidence of record is not sufficient to establish that the accepted work factors caused or
aggravated her prior shoulder or neck conditions.
Two reports were received from Dr. Chmell. On November 30, 2009 Dr. Chmell stated
that appellant’s work-related shoulder injuries had deteriorated, particularly on the left side, with
her work activities. However, he did not address her work activities or explain how they would
cause her shoulder or cervical conditions to worsen. The employing establishment noted that
appellant worked at limited duty in a rehabilitation assignment, which did not require above the
shoulder lifting or any raising of the arms. Medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.14 On February 6, 2010 Dr. Chmell opined that appellant’s previously
accepted work-related conditions continued to deteriorate because she did not have appropriate
seating and continued to work. Again, he failed to offer a fully rationalized medical opinion
based on examination findings or objective medical evidence to support that appellant sustained
a new medical condition or a worsening, aggravation or acceleration of her previously accepted
shoulder or neck conditions due to lack of appropriate seating.15 Dr. Chmell specifically stated
that there was no new injury and no new medical condition. His reports are insufficient to
support a new occupational injury claim.
Appellant expressed her belief that her shoulder and neck conditions worsened as a result
of her lack of appropriate seating and the area in which she sits to work. The Board has held that
the mere fact that a condition manifests itself during a period of employment does not raise an
inference that there is a causal relationship between the two.16 Neither the fact that the condition
became apparent during a period of employment, nor the belief that the condition was caused or
aggravated by employment factors or incidents, is sufficient to establish causal relationship.17
Causal relationship must be substantiated by reasoned medical opinion evidence, which it is
appellant’s responsibility to submit. As explained, appellant did not submit sufficient medical
evidence to establish that she sustained a new occupational injury.
On appeal, appellant’s attorney argues the Office’s decision is contrary to law and facts;
however, for the reasons noted, appellant failed to meet her burden of proof.

13

Office regulations define the term occupational disease or illness as a condition produced by the work
environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(ee).
14

Michael E. Smith, 50 ECAB 313 (1999); S.E., Docket No. 08-2214 (issued May 6, 2009).

15

D.G., supra note 11.

16

See Joe T. Williams, 44 ECAB 518, 521 (1993).

17

Id.

4

Appellant may submit additional evidence, together with a formal written request for
reconsideration, to the Office within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a).
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an occupational
disease in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 4, 2010 is affirmed.
Issued: May 13, 2011
Washington, DC

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

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

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

5