United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Buffalo, NY, Employer
__________________________________________

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

Docket No. 07-1133
Issued: October 10, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 16, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ denial of reconsideration dated March 5, 2007 and a February 2, 2007
merit decision denying compensation for an alleged emotional condition. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant failed to meet her burden of proof to establish that
she sustained an emotional condition in the performance of duty; and (2) whether the Office
properly refused to reopen appellant’s case for reconsideration of her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
Appellant, a 30-year-old mail carrier, filed a claim for benefits based on an emotional
condition on December 16, 2006. She alleged that she developed traumatic stress due to an
incident which occurred on December 12, 2006.

In a December 19, 2006 memorandum, appellant related that, at approximately 11:00
a.m. on December 12, 2006, she was walking through housing projects toward a parking lot
where her postal vehicle was parked; she had just completed her deliveries in that section of the
projects. She was walking toward her vehicle when she came upon a man who was yelling
loudly and uttering belligerent statements. Appellant put her head down and tried to ignore him
and continued to walk toward her vehicle when suddenly the man said, “We can do this the right
way or the wrong way, it’s your choice.” She then looked up and noticed the man was
brandishing a silver handgun and pointing it in her direction. While appellant continued to walk
toward her vehicle, she looked behind her and noticed another man standing there. She then
looked back at the man holding the gun, who suddenly put the gun behind his back, tucked it into
his blue jeans and put his coat over it. Once appellant realized that she was not being targeted,
she walked to her vehicle, opened the door and drove away. After she had traveled a short
distance, she began crying and shaking. Appellant then called the employing establishment and
the police to inform them that the incident had occurred. Her supervisor, Justin Parisi, arrived at
the scene, as did the police, who took her statement and report of the gun incident.
Appellant stated that she attempted to return to work and finish her rounds for the day;
however, she began to experience flashbacks, weakness and shakiness. She stated that she was
constantly on edge and looking over her back. Appellant indicated that she returned to work the
following day but had difficulty performing her job due to the trauma and stress stemming from
the December 12, 2006 incident.
Appellant submitted Forms CA-20 and CA-17 reports from Dr. Peter Kinkel who
diagnosed anxiety and checked a box indicating that the diagnosed condition was caused or
aggravated by the December 12, 2006 work incident.
In a statement dated December 16, 2006, appellant’s supervisor, Mr. Parisi related:
“On December 12, 2006 I received a telephone call from [appellant]. She stated
that someone pulled out a gun and pointed at another individual in front of her. I
immediately went out to investigate. Upon arriving I called 911. The police
arrived and took a description of the individual. I stayed with [appellant] for
about 40 minutes. I asked her if she could continue the route and she said yes.
But she did not want to deliver around where the incident took place. I advised
her to skip that part of her route and later if she felt okay she could go back and
deliver it. When I left her she said that she could continue. I told her to call the
station if she had any other issues.”
In a December 22, 2006 report, Dr. Stengel related that appellant was experiencing
headaches, black vision, generalized shakiness, numbness on the left side of her face and
sleeplessness. She indicated that appellant was totally disabled.
By letter dated December 27, 2006, the Office requested that appellant submit additional
medical evidence in support of her claim, including a comprehensive medical report describing
how the claimed incident on December 12, 2006 resulted in the diagnosed condition and provide
factual evidence, which would establish that he had developed an emotional condition caused by
factors of his employment.

2

Appellant submitted several additional treatment slips from January 2007 from
Dr. Kinkel. In a treatment slip dated January 12, 2007, Dr. Kinkel excused appellant from work
through February 7, 2007 due to her diagnosed condition of anxiety.
By decision dated February 2, 2007, the Office denied appellant’s emotional condition
claim. The Office accepted the December 12, 2006 incident as a compensable factor of
employment. It found, however, that the medical evidence of record did not establish that her
claimed emotional condition was causally related to the accepted employment factor. The Office
stated that the medical evidence that appellant had submitted was not sufficient to establish that
she had sustained her emotional condition in the performance of duty.
On February 17, 2007 appellant requested reconsideration.
additional medical evidence.

She did not submit any

By decision dated March 5, 2007, the Office denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT -- ISSUE 1
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that the emotional
condition is causally related to compensable employment factors.1
The first issue to be addressed is whether appellant has cited factors of employment that
contributed to her alleged emotional condition or disability. Where the disability results from an
emotional reaction to regular or specially assigned work duties or a requirement imposed by the
employment, the disability comes within the coverage of the Act.2
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment; liability does
not attach merely upon the existence of an employee/employer relationship.3 Instead, Congress
provided for payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty. The Board has interpreted the phrase
“while in the performance of duty” to be the equivalent of the commonly found requisite in
workers’ compensation law of “arising out of and in the course of employment.” “In the course
of employment” deals with the work setting, the locale and time of injury whereas, “arising out,
of the employment,” encompasses not only the work setting but also a causal concept, the
1

See Debbie J. Hobbs, 43 ECAB 135 (1991).

2

Lillian Cutler, 28 ECAB 125 (1976).

3

Larry J. Thomas, 44 ECAB 291 (1992).

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requirement being that an employment factor caused the injury. In addressing this issue, the
Board has stated that in the compensation field, to occur in the course of employment, in general,
an injury must occur: (1) at a time when the employee may reasonably be said to be engaged in
his or her master’s business; (2) at a place where he or she may reasonably be expected to be in
connection with the employment; and (3) while he or she was reasonably fulfilling the duties of
his or her employment or engaged in doing something incidental thereto.4 The Board has also
adopted the positional risk doctrine which supports compensation in situations where the only
connection of the employment with the injury is that the obligations placed the employee in the
particular place at the particular time when he was injured by some neutral force, meaning by
“neutral” neither person to the claimant nor distinctly associated with the employment.5
ANALYSIS -- ISSUE 1
In the instant case, the Office accepted one incident as compensable; i.e., the
December 12, 2006 incident in which a man pointed a gun in appellant’s direction while she was
delivering mail. The Board finds that, given the circumstances described by appellant and
accepted as factual by the Office hearing representative, the December 12, 2006 incident
constitutes a compensable factor of employment.6 Appellant was in the “course of employment”
at the time of the alleged injury as she was completing her mail carrier duties, on her route, when
she was allegedly injured by the “neutral” force.
However, appellant’s burden of proof is not discharged by the fact that she has established
an employment factor which may give rise to a compensable disability under the Act. To establish
her occupational disease claim for an emotional condition, appellant must also submit rationalized
medical evidence establishing that she has an emotional or psychiatric disorder and that such
disorder is causally related to the accepted compensable employment factor.7 Appellant submitted
treatment slips from Dr. Kinkel, which did not contain a rationalized medical opinion, based on a
proper factual and medical background, explaining his opinion on causal relationship or
otherwise relating his diagnosis to the factor found compensable in this case. The weight of
medical opinion is determined by the opportunity for and 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.8 Dr. Kinkel does not demonstrate a complete or accurate factual background or
provide an opinion relating appellant’s December 12, 2006 incident in which a man brandished a
gun and pointed it in her direction as a causative factor to her diagnosed emotional condition.
Furthermore, the form reports from Dr. Kinkel that support causal relationship with a check mark
are insufficient to establish the claim, as the Board has held that without further explanation or
4

Id.

5

Id.

6

Mary J. Summers, 55 ECAB 730 (2004).

7

See William P. George, 43 ECAB 1159, 1168 (1992).

8

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

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rationale, a checked box is not sufficient to establish causation.9 For these reasons, the Board
finds the reports of Dr. Kinkel insufficient to establish that appellant sustained an emotional
condition causally related to her compensable work factor.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by constituting
relevant and pertinent evidence not previously considered by the Office.10 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.11
ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law. She did not advance a relevant legal argument not previously
considered by the Office. Appellant did not submit relevant and pertinent evidence not
previously considered by the Office. She did not submit any medical evidence in connection
with her February 17, 2007 reconsideration request. Thus, the request did not contain any new and
relevant evidence for the Office to review. In addition, appellant’s reconsideration request
contains arguments that are cumulative and repetitive of contentions that were presented and
rejected by the Office in previous decisions. The Board finds that the Office properly refused to
reopen appellant’s claim for reconsideration.
CONCLUSION
The Board finds that the Office properly found that appellant failed to meet her burden of
proof to establish that she sustained an emotional condition in the performance of duty. The
Board finds that the Office properly refused to reopen appellant’s case for reconsideration on the
merits of her claim under 5 U.S.C. § 8128(a).

9

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

10

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

11

Howard A. Williams, 45 ECAB 853 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the March 5 and February 2, 2007 decisions of the
Office of Workers’ Compensation Programs be affirmed.
Issued: October 10, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, NORTH TEXAS
PROCESSING & DISTRIBUTION CENTER,
Coppell, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1320
Issued: February 8, 2021

Case Submitted on the Record

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

On June 23, 2020 appellant filed a timely appeal from a May 28, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 20-1320.1
On December 12, 2017 appellant, then a 53-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 6, 2017 he injured his right arm when he lifted a
mail tray and his arm popped while in the performance of duty. He indicated that he subsequently
experienced right arm swelling, pain, and numbness. On the reverse side of the claim form, the
employing establishment indicated that appellant stopped work on November 7, 2017. OWCP
accepted the claim for a strain of an unspecified muscle, fascia, and tendon at the shoulder and
upper arm level of the right arm, a strain of muscle and tendon of the wall of the thorax, and a

1

The Board notes that following the May 28, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

strain of muscle, fascia, and tendon of the long head of the right arm biceps, incomplete rotator
cuff tear or rupture of the right shoulder, and right shoulder superior glenoid labrum lesion.
A February 3, 2020 report by Eric Naifeh, a nurse practitioner, reviewed appellant’s history
of injury and current symptoms. Mr. Naifeh conducted a physical examination, diagnosed a
shoulder strain and a strain of the biceps brachii muscle and/or tendon, and listed work restrictions.
Appellant submitted additional medical reports from Mr. Naifeh dated February 10, 24, and 27,
March 2, 9, and 16, and April 2, 2020.
On February 4, 2020 appellant accepted an offer of a full-time modified-duty position from
the employing establishment, effective on that date. A February 7, 2020 compensation termination
sheet indicated that OWCP compensated appellant for February 2 through 3, 2020 and terminated
appellant’s compensation on February 4, 2020.
On February 18, 2020 appellant filed a claim for compensation (Form CA-7) for nonintermittent wage loss from February 1 through 14, 2020. On the reverse side of the claim form,
the employing establishment indicated that he took intermittent leave without pay (LWOP) and
worked intermittently from February 1 to 14, 2020.
In a development letter dated February 28, 2020, OWCP informed appellant that additional
evidence was needed in support of his compensation claim. It advised of the factual and medical
evidence necessary to establish his claim. OWCP afforded 30 days for appellant to submit the
requested evidence.
On March 2, 2020 appellant filed a Form CA-7 for non-intermittent wage loss from
February 17 through 28, 2020. On the reverse side of the claim form, the employing establishment
indicated that he took continuous LWOP from February 17 to 28, 2020.
In a development letter dated March 4, 2020, OWCP informed appellant that additional
evidence was needed in support of his compensation claim. It advised of the factual and medical
evidence necessary to establish his claim. OWCP afforded 30 days for appellant to submit the
requested evidence.
On March 11, 2020 OWCP received a February 3, 2020 work capacity evaluation (Form
OWCP-5c) by Dr. Jelani Ingram, Board-certified in family medicine, who indicated that appellant
could work medium duty and listed his work restrictions. Appellant submitted additional
OWCP-5c forms from Dr. Ingram dated February 10, March 2, and April 2, 2020
OWCP received February 29 and March 29, 2020 nursing progress reports and an April 4,
2020 nurse closure report by Ms. Hippert.
On March 3, 2020 appellant accepted another full-time modified rural carrier assignment
from the employing establishment.
In a time analysis form (Form CA-7a) dated March 16, 2020, appellant claimed
compensation for the dates February 4, and 6 to 28, 2020 for 144 hours of LWOP. He stated that
his physician modified his work restrictions.

2

By decision dated May 28, 2020, OWCP denied appellant’s compensation claim, finding
that the evidence of record was insufficient to establish that appellant was disabled from work
during the period February 1 to 28, 2020 causally related to his accepted employment injuries.
The decision indicated that OWCP did not receive any evidence to support appellant’s claim. The
decision also indicated that no evidence had been received in response to the development letter
dated February 28, 2020 and no Form CA-7a had been provided to show dates and hours claimed
after the job offer was signed on February 4, 2020.
The Board has duly considered the matter and finds that the case is not in posture for
decision. In the case of William A. Couch,2 the Board held that when adjudicating a claim OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
In its May 28, 2020 decision, OWCP found that no evidence was submitted to support
appellant’s claim. However, as detailed above, appellant submitted OWCP-5c forms and medical
reports dated from February 2 to April 2, 2020 and March 16, 2020, CA7a forms, and reports by
the field nurse Ms. Hippert were also submitted. OWCP thus failed to follow its procedures by
not considering all of the relevant evidence of record.3
It is crucial that OWCP addresses all relevant evidence received prior to the issuance of its
final decision, as the Board’s decisions are final with regard to the subject matter appealed.4 The
Board finds that this case is not in posture for decision, as OWCP did not address the above-noted
evidence in its May 28, 2020 decision.5 On remand, following any further development as deemed
necessary, OWCP shall issue an appropriate decision.

2

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

3

OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision.
Evidence received following development that lacks probative value should also be acknowledged. Whenever
possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Denials, Chapter 2.1401.5(b)(2) (November 2012).
4

E.D., Docket No. 20-0620 (issued November 18, 2020); see C.S., Docket No. 18-1760 (issued November 25,
2019); Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, supra note 2.
5

D.S., Docket No. 20-0589 (issued November 10, 2020); see V.C., Docket No. 16-0694 (issued August 19, 2016).

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IT IS HEREBY ORDERED THAT the May 28, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: February 8, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 07-2386
Issued: June 2, 2008

Case Submitted on the Record

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

JURISDICTION
On September 20, 2007 appellant filed a timely appeal of a September 11, 2007 decision
of the Office of Workers’ Compensation Programs, finding that appellant’s request for
reconsideration was untimely and failed to show clear evidence of error. Pursuant to 20 C.F.R.
§ 501.3, the Board’s jurisdiction is limited to decisions issued within one year of the filing of the
appeal. Since the last merit decision was issued September 25, 2002, the Board does not have
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly declined to reopen the case for merit review on
the grounds that appellant’s application for reconsideration was untimely and failed to show
clear evidence of error.

FACTUAL HISTORY
The case has previously been before the Board. In a decision dated September 25, 2002,
the Board affirmed the termination of compensation as of June 1, 1992.1 The Board found that
the weight of the medical evidence was represented by second opinion psychiatrist, Dr. Reynaldo
Abejuela, who submitted reports dated February 1 and November 11, 1996 and March 12, 1997.
In a decision dated March 14, 2005, the Board affirmed a June 13, 2003 Office decision denying
appellant’s request for reconsideration without merit review of the claim. By decision dated
August 23, 2006, the Board affirmed a November 21, 2005 Office decision finding appellant’s
application was untimely and failed to show clear evidence of error.2 The history of the case is
provided in the Board’s prior appeals and is incorporated herein by reference.
By letter dated February 12, 2007, appellant requested reconsideration of his claim. He
reiterated his argument that he had been subject to sexual harassment and discrimination at the
employing establishment. Appellant submitted numerous letters restating his allegations. With
respect to medical evidence, he submitted a June 20, 2006 report from Dr. Arnold Nerenberg, an
attending clinical psychologist, who stated that the employment-related emotional condition did
not resolve before June 1, 1992. Dr. Nerenberg argued that appellant was subject to sexual
harassment and discrimination. He also stated that appellant would continue his crusade to
correct perceived wrongs and this would cause additional stress.
By decision dated September 11, 2007, the Office determined that the application for
reconsideration was untimely. The Office further denied the application on the grounds that it
did not show clear evidence of error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.3 The employee shall exercise this right through a request to
the district office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”4
Section 8128(a) of the Act5 does not entitle a claimant to a review of an Office decision
as a matter of right.6 This section vests the Office with discretionary authority to determine

1

Docket No. 00-1176 (issued September 25, 2002). The Office had accepted that appellant sustained an
adjustment disorder and temporary aggravation of a paranoid personality disorder due to his federal employment.
2

Docket No. 06-375 (issued August 23, 2006), petition for recon. denied (issued January 24, 2007).

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.605 (1999).

5

5 U.S.C. § 8128(a).

6

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

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whether it will review an award for or against compensation.7 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).8
As one such limitation, the Office has stated that it will not review a decision denying or
terminating a benefit unless the application for reconsideration is filed within one year of the
date of that decision.9 The Board has found that the imposition of this one-year limitation does
not constitute an abuse of the discretionary authority granted the Office under 5 U.S.C.
§ 8128(a).10
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.11 In accordance with this holding the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.12
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.13 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.14 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.15 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.16 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.17 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
7

Under section 8128 of the Act, “[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.”
8

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a specific point of law, or (2) advancing a relevant
legal argument not previously considered by the Office, or (3) constituting relevant and pertinent evidence not
previously considered by the Office; see 20 C.F.R. § 10.606(b).
9

20 C.F.R. § 10.607(a).

10

See Leon D. Faidley, Jr., supra note 6.

11

Leonard E. Redway, 28 ECAB 242 (1977).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

13

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

14

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

15

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

16

See Leona N. Travis, supra note 14.

17

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

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a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.18 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.19
ANALYSIS
The last merit decision in the case was the Board’s September 25, 2002 decision. The
February 12, 2007 application for reconsideration was more than one year after the merit
decision, and therefore is untimely. Appellant has submitted an application for reconsideration
and numerous letters reiterating his allegation that he was subject to discrimination and sexual
harassment at the employing establishment. As the Board noted in its prior decisions,
discrimination and sexual harassment were not established as compensable work factors in this
case. The compensable work factor was an October 4, 1991 incident involving verbal abuse by a
supervisor. The Office terminated compensation as of June 1, 1992 on the grounds the weight of
the medical evidence, as represented by second opinion psychiatrist, Dr. Reynaldo Abejuela,
established the accepted adjustment disorder and temporary aggravation of paranoid personality
disorder had resolved.
To reopen the case for merit review, appellant would have to submit evidence of such
probative value that it prima facie shifts the weight of the evidence and raises a substantial
question as to the correctness of the Office decision to terminate compensation as of
June 1, 1992. The medical evidence from Dr. Nerenberg is not sufficient to shift the weight of
the evidence. He did not provide an accurate factual background, as he discussed factors that
were not established as compensable work factors. Dr. Nerenberg stated that an employmentrelated condition continued after June 1, 1992, without providing medical rationale. The Board
notes that even if Dr. Nerenberg were to provide an opinion sufficient to create a conflict with
the second opinion physician Dr. Abejuela, this would not establish clear evidence of error.20
Accordingly, the Board finds that the application for reconsideration did not show clear
evidence of error by the Office. Since appellant did not meet the clear evidence of error
standard, the Office properly denied the untimely application for reconsideration without merit
review of the claim.
CONCLUSION
The application for reconsideration was untimely and failed to show clear evidence of
error.

18

Leon D. Faidley, Jr., supra note 6.

19

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

20

See Leon D. Faidley, Jr., supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 11, 2007 is affirmed.
Issued: June 2, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 19-1968
Issued: August 28, 2020

Case Submitted on the Record

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

JURISDICTION
On August 20, 20191 appellant filed a timely appeal from a February 25, 20192 merit
decision of the Office of Workers’ Compensation Programs (OWCP).3 Pursuant to the Federal

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. § 501.3(e)(f). One hundred and eighty days from February 25, 2019, the date of OWCP’s decision, was August 24, 2019. Since
using October 7, 2019, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss
of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark
is August 20, 2019, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

Appellant’s AB-1 form indicates that she is requesting an appeal of an October 18, 2018 decision; however, the
only final adverse OWCP decision within the Board’s jurisdiction is the February 25, 2019 decision.
3

The Board notes that following the February 25, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

Employees’ Compensation Act4 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a left wrist condition
causally related to the accepted August 7, 2018 employment incident.
FACTUAL HISTORY
On August 7, 2018 appellant, then a 64-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that she fractured her left wrist on that date when she fell and struck her arm
and wrist on steps and pavement while in the performance of duty. She stopped work that day.
On August 7, 2018 appellant was admitted to the hospital. On August 8, 2018 Dr. Allan H.
Tissenbaum, a Board-certified orthopedic surgeon, diagnosed comminuted intra, extraarticular
distal radial and ulnar fracture and performed a surgical internal fixation and external fixator
application of the left wrist. Appellant was discharged on August 10, 2018 with a diagnosis of left
radial fracture. On August 13, 2018 documentation from appellant’s health insurance company
indicated that she was admitted to St. Clair Hospital and underwent surgery. On August 22, 2018
Dr. Eric D. Nabors, a Board-certified orthopedic surgeon, diagnosed external fixation of the left
wrist and noted the date of injury as August 7, 2018.
In an August 22, 2018 postoperative note, Dr. Tissenbaum reported that appellant
underwent left wrist surgery two weeks earlier. He diagnosed left wrist fracture status post external
fixation.
An August 28, 2018 nurses report referenced that appellant reported that when she
delivered a package, she lost her footing and fell, fracturing her left wrist. She was then transported
to St. Clair hospital and underwent surgery for reduction and stabilization of the fracture.
In an attending physician’s report (Form CA-20) dated September 5, 2019, Dr. Tissenbaum
diagnosed left wrist fracture. He noted that appellant underwent surgery on August 8, 2018.
Dr. Tissenbaum did not answer the form question whether he believed that the condition was
caused or aggravated by the employment activity. In a work capacity evaluation (Form OWCP-5c)
of even date, Dr. Tissenbaum found that appellant was disabled from work.
In a September 6, 2018 development letter, OWCP advised appellant, that when her claim
was received it appeared to be a minor injury that resulted in minimal or no lost time from work.
The claim was administratively approved to allow payment of a limited amount of medical
expenses, but the merits of the claim had not been formally adjudicated. OWCP advised that
because appellant had not returned to full-time work, her claim would be formally adjudicated. It
requested that she submit factual and medical information including a comprehensive report from
her physician regarding how a specific work incident contributed to her claimed injury. OWCP

4

5 U.S.C. § 8101 et seq.

2

provided appellant with a questionnaire for completion and afforded her 30 days to submit the
necessary evidence.
In a September 12, 2018 response to OWCP’s September 6, 2018 development
questionnaire, appellant noted that she fell when she lost her footing on a step while delivering a
package and mail.
On September 12 and 24, 2018 Dr. Tissenbaum examined appellant. He removed the
external fixation of her left wrist on September 24, 2018. Beginning on September 26, 2018
appellant underwent treatment by Deanna Gregory, a physical therapist.
By decision dated October 18, 2018, OWCP denied appellant’s traumatic injury claim,
finding that she had not established causal relationship between her diagnosed left wrist fracture
and the accepted August 7, 2018 employment incident.
On November 6, 2018 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
By decision dated February 25, 2019, OWCP’s hearing representative found that the
medical evidence of record was insufficient to establish causal relationship between appellant’s
accepted employment of August 7, 2018 and her diagnosed left wrist fracture.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of 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

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury.9
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence.10 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee.11 The weight of the medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested, and the medical rationale expressed in support of the physician’s opinion.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left wrist
condition causally related to the accepted August 7, 2018 employment incident.
On August 7, 2018 appellant was admitted to the hospital for a left radial fracture. The
following day she underwent surgery performed by Dr. Tissenbaum. Dr. Tissenbaum diagnosed
comminuted intra, extraarticular distal radial and ulnar fracture. Appellant was subsequently
discharged from the hospital on August 10, 2018 with a diagnosis of left radial fracture. These
records do not address whether appellant’s diagnosed condition was caused or aggravated by the
accepted August 7, 2018 employment incident. Likewise, in his September 5, 2018 Form CA-20
and Form OWCP-5c reports, Dr. Tissenbaum diagnosed a left wrist fracture, but did not provide
an opinion on the cause of appellant’s condition. In reports dated September 12 and 24, 2018, he
noted examining appellant and removing external fixation of her left wrist on September 24, 2018.
However, Dr. Tissenbaum never addressed the cause of appellant’s condition. The Board has held
that medical evidence that does not include an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.13 As such, Dr. Tissenbaum’s
reports are insufficient to establish appellant’s claim.
On August 22, 2018 Dr. Nabors diagnosed external fixation of the left wrist and noted that
appellant’s date of injury was August 7, 2018. However, he too did not provide an explanation of
how the August 7, 2018 employment incident physiologically caused or aggravated appellant’s

8

T.M., Docket No. 19-0380 (issued June 26, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

M.H., Docket No. 18-1737 (issued March 13, 2019); T.H., 59 ECAB 388 (2008); Bonnie A. Contreras, 57 ECAB
364 (2006).
10

S.A., Docket No. 18-0399 (issued October 16, 2018); Robert G. Morris, 48 ECAB 238 (1996).

11

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
12

D.R., Docket No. 19-0954 (issued October 25, 2019); James Mack, 43 ECAB 321 (1991).

13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

4

diagnosed condition.14 Therefore, Dr. Nabors’ August 22, 2018 report is also insufficient to
establish appellant’s claim.
Appellant also provided treatment notes from a physical therapist and an August 28, 2018
nurse’s report which referenced appellant’s August 7, 2018 fall. The Board has held that medical
reports signed solely by a physical therapist or a nurse are of no probative value as a they are not
considered physicians as defined under FECA and therefore is not competent to provide a medical
opinion.15
As the medical evidence does not include a rationalized opinion explaining that appellant’s
accepted August 7, 2018 employment-related fall caused her diagnosed condition, the Board finds
that she has not met her burden of proof.16
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her left
wrist fracture was causally related to the accepted August 7, 2018 employment incident.

14

G.L., Docket No. 18-1057 (issued April 14, 2020).

15
See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law).
16
See T.J., Docket No. 19-1339 (issued March 4, 2020); F.D., Docket No. 19-0932 (issued October 3, 2019) D.N.,
Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued December 31, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the February 25, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 28, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Canandaigua, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0854
Issued: October 17, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 14, 2019 appellant, through counsel, filed a timely appeal from a September 24,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts of the case as presented in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On July 20, 2015 appellant, then a 57-year-old recreation therapist, filed an occupational
disease claim (Form CA-2) alleging an allergic reaction and respiratory distress resulting from
exposure to cleaning chemicals while in the performance of duty. She noted that she first became
aware of her conditions and their relationship to her federal employment on July 2, 2015.
Appellant contended that, following her December 14, 2014 employment injury, she returned to
work in an alternate-duty assignment at an offsite facility where she experienced the same
symptoms she had previously experienced on December 14, 2014.4 She stopped work on
July 13, 2015.
By development letter dated August 14, 2015, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. A separate development letter
of even date was sent to the employing establishment requesting that a knowledgeable supervisor
respond as to the accuracy of appellant’s allegations and to provide further evidence. OWCP
afforded both her and the employing establishment 30 days to respond.
In a response dated September 14, 2015, an employing establishment human resources (HR
specialist)/workers’ compensation specialist concurred with appellant’s allegations. She noted
that appellant had worked outside of its facilities in an alternate-duty mobile unit as a recreation
therapist due to appellant’s previously accepted claim. The HR specialist related that appellant
worked eight hours a day on the days that appellant became ill with respiratory distress due to her
exposure. She noted that appellant had just returned to work following her accepted December 14,
2014 employment injury. The HR specialist also related that the alternate-duty assignment was
created for appellant to minimize the effects of her exposure.
A letter dated April 8, 2015 by Dr. Anatole Kleiner, a physician Board-certified in allergy
and immunology, was received. He noted that appellant presented for evaluation of respiratory
symptoms and related a history that her symptoms began in December 2014 and that she had been
out of work since January 2015. Dr. Kleiner reported findings on physical examination and skin
3

Docket No. 18-0186 (issued May 2, 2018).

4

OWCP assigned the present claim OWCP File No. xxxxxx804. Appellant had a prior claim, assigned OWCP File
No. xxxxxx227, which was originally filed as a claim for a December 14, 2014 traumatic injury, but later converted
to an occupational disease claim. OWCP accepted OWCP File No. xxxxxx227 for extrinsic asthma with acute
exacerbation (airway hyperreactivity syndrome induced by chemical inhalation). Appellant returned to work on
June 22, 2015 in a full-time alternate-duty assignment in the same classified position as a recreation therapist following
her accepted December 14, 2014 employment injury. Her claims have been administratively combined.

2

and spirometry testing and provided impressions of shortness of breath, cough, and other adverse
effects not elsewhere. He related that appellant’s history was suggestive of possible asthma
occurring due to exposure to irritating floor containing compounds. Appellant did not have any
baseline asthma or allergic disease. Dr. Kleiner pointed out that, unfortunately, there was no way
to test for “IgE-mediated allergy” to the ingredients of the floor cleaning solutions. In any case,
he advised that “IgE-mediated allergy” was unlikely in this case. Dr. Kleiner maintained that,
more likely, appellant was having issues related to irritant properties of the aforementioned
properties. He noted that this could only be confirmed by means of controlled exposure along with
measurement of pulmonary function, which his office was not set up to perform.
A medical report dated May 4, 2015 by Dr. Mark J. Utell, an attending Board-certified
internist with a subspecialty in pulmonary disease, was also received.5 He noted that appellant
presented for evaluation of work-related systemic and respiratory symptoms related to her
workplace exposure. Dr. Utell further noted that her diagnoses included respiratory symptoms,
most consistent with irritant-induced airway hyperreactivity and upper respiratory symptoms
secondary to exposure to irritants. He indicated that these conditions were work related. Dr. Utell
further indicated that appellant denied any history of respiratory disease or allergies prior to her
December 14, 2014 employment injury. He noted that she related a history of this injury and
medical treatment. Appellant also related that when she returned to work she became symptomatic
again. Dr. Utell indicated that, at the present time, she remained asymptomatic as long as she
avoided the environment at the employing establishment. He reported findings on physical
examination and reviewed diagnostic test results. Dr. Utell provided an impression that appellant
had no history of prior respiratory or allergic disease. On December 14, 2014 appellant inhaled
an agent that was used for revitalizing floor surfaces in a work area. She immediately became
symptomatic with respiratory and upper airway symptoms. The symptoms were of a severity that
appellant was sent from work to the emergency room on one occasion. She had developed
symptoms on multiple occasions while working at the employing establishment and had not been
able to tolerate her workplace. Appellant was placed on a federal disability program in
January 2015 and had done extremely well as long as she avoided the indoor environment at work.
Dr. Utell opined that she had developed a syndrome best described as airway hyperreactivity
induced by chemical inhalation. He related that appellant had no history of preexisting allergy and
it seemed unlikely that this was based on an immunological sensitivity. Dr. Utell asserted that it
was much more likely that she had developed an irritant response and had become sensitive to a
cleaning agent and perhaps other inhaled strong odors. Appellant had been intolerant to her indoor
workplace ever since the time of injury and developed acute symptoms over the subsequent six
months virtually every time she returned to the employing establishment. Dr. Utell noted that in
these types of clinical situations with intolerance of an indoor environment, it was virtually
impossible to determine the speciﬁc chemical agent that was causing the symptoms. Appellant ’s
skin tests to inhaled allergens were negative. It seemed unlikely that she had an allergy per se and
her symptom complex was more typical of an irritant respiratory response. Dr. Utell related that,
in looking over the safety data sheets (SDS) for the workplace materials, there were some
chemicals that had been associated with respiratory irritation. There was virtually no place that
Dr. Utell’s May 4, 2015 report was first received under OWCP File No. xxxxxx227 on May 29, 2015. As noted
above, OWCP accepted appellant’s claim for extrinsic asthma with acute exacerbation (airway hyperreactivity
syndrome induced by chemical inhalation) under that file number on June 11, 2015.
5

3

was doing challenge testing with chemicals these days due to concerns for acute symptomatology
with exposure as well as other liability concerns. Thus, there was simply no mechanism or test for
identifying the speciﬁc chemical or chemicals which appellant needed to avoid. Dr. Utell
recommended that appellant wear a mask in the workplace, noting, however, that this would not
be an acceptable alternative for dealing with patients or clients given her job responsibilities as a
recreational therapist. He concluded that she should not continue to work in the employing
establishment’s buildings.
On September 18, 2015 appellant responded to OWCP’s August 14, 2015 development
questionnaire. She contended that an unknown exposure caused her issues. Appellant related that
her and her physicians’ best guess was that the cause was industrial or aerosol cleaning chemicals.
She indicated that her exposure occurred each time she walked through halls, and a building and
facility. The exposure lasted as long as appellant could stand it/continue to breathe or was sent
home/to an emergency room by the employee health unit. She indicated that no protective
equipment was made available or offered to her. Appellant described her symptoms, which
included watering eyes, shortness of breath, and hoarseness that continued until she could barely
breathe. Her symptoms worsened when she stayed in the building/area that triggered the attack.
Fresh air improved her condition. Appellant related that no treatment had been effective in
controlling her condition. She could not remember the exact date her condition began, but it was
in December 2014. Appellant maintained that her condition was continuous as there was no time
that it did not occur when she entered various facilities. She related that her exposure occurred
while on assignment at an off-site, nonfederal facility after bathrooms were cleaned. Appellant
noted that she had no previous similar conditions.
In a witness statement dated September 18, 2015, appellant’s coworker indicated that she
saw appellant having a reaction to something on two separate occasions. She related that no one
else appeared to be affected by what was bothering her.
In a follow-up visit report dated July 6, 2015, Dr. Utell performed a follow-up examination
for appellant’s work-related respiratory symptoms most consistent with irritant-induced airway
hyperreactivity and upper respiratory symptoms secondary to exposure to irritants. He discussed
findings on physical examination. Dr. Utell continued to opine that appellant developed airway
hyperreactivity induced by chemical inhalation, again noting that she had no history of allergies.
He indicated that she had done quite well at work for several weeks until an air supply cleaning
agent was used which resulted in her exposure and developing acute symptoms. Dr. Utell advised
that appellant could work as long as she avoided exposure to aerosolized or spray cleaning agents.
In a work restriction form dated October 19, 2015, an unknown provider with an illegible
signature from Finger Lakes Occupational Health Services, noted that appellant may not return to
work in the employing establishment environment. Appellant could not be exposed to cleaning
materials.
On November 18, 2015 appellant filed a notice of recurrence (Form CA-2a) alleging that
she sustained of recurrence of total disability on July 2, 2015 due to her accepted December 14,
2014 employment injury. She explained that because she was unable to return to an employing
establishment facility due to her reaction to chemicals used in her work area, she was assigned to

4

off-site facilities where she was exposed to chemical cleaning products which caused her
respiratory symptoms to recur.
In support of her recurrence claim, appellant submitted a report dated October 19, 2015 in
which Dr. Utell continued to opine that she developed airway hyperreactivity induced by chemical
inhalation and that she had an intolerance to a number of work-related cleaning agents.
On December 7, 2015 OWCP determined that appellant’s recurrence claim should be
adjudicated as a new occupational disease claim and assigned OWCP File No. xxxxxx670.
However, on March 18, 2016 it deleted the claim under OWCP File No. xxxxxx670 because it had
created two separate cases for the same injury. OWCP moved the documents from that case record
into the case under OWCP File No. xxxxxx804.
In a development letter dated February 8, 2016, OWCP again requested that the employing
establishment provide comments from a knowledgeable supervisor on the accuracy of all
statements provided by appellant relative to her occupational disease claim. In an addendum to its
development letter, it requested that she respond to the employing establishment’s September 14,
2015 comments.
By letter dated February 17, 2016, a recreation therapy supervisor from the employing
establishment, responded that he had been aware of appellant’s illness related to her work
environment at the employing establishment and off-station worksites. He had personally
witnessed her reaction and illness on several occasions and considered her statements to be
accurate.
OWCP received a follow-up visit report dated February 15, 2016 by Dr. Utell reiterated a
history of appellant’s previously accepted December 14, 2014 employment injury and current
claimed work injury. Dr. Utell noted that she also had a respiratory episode in the past few months
when she visited Walmart. Appellant was not entirely clear what exposure precipitated her
symptoms, but she left the store and recovered fairly quickly. Dr. Utell indicated that she remained
otherwise entirely asymptomatic and that she was not aware of any other agents that provoked her
symptoms. He reported findings on physical examination and advised that his diagnoses of workrelated respiratory symptoms most consistent with irritant-induced airway hyperreactivity and
upper respiratory symptoms secondary to exposure to irritants were unchanged. Dr. Utell again
opined that appellant had developed a syndrome best described as airway hyperreactivity induced
by chemical inhalation.
OWCP, by decision dated March 22, 2016, denied appellant’s occupational disease claim.
It accepted her employment duties, but denied her claim because the medical evidence submitted
was insufficient to establish a diagnosed medical condition in connection with the accepted factors
of her federal employment. It concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
On January 17, 2017 appellant, through counsel, requested reconsideration. Counsel noted
that since leaving the employing establishment appellant had remained essentially asymptomatic
and had no limitations with her activities.

5

By decision dated March 9, 2017, OWCP denied modification of its March 22, 2016
decision, again finding that the medical evidence submitted was insufficient to establish a
diagnosed medical condition causally related to the accepted employment factors.
On March 14, 2017 appellant, through counsel, requested reconsideration of the March 22,
2016 and March 9, 2017 decisions. Counsel submitted a complete copy of the November 10, 2016
letter, in which Dr. Utell again related a history of her December 14, 2014 employment injury and
current claimed employment injury. In addition, Dr. Utell again diagnosed work-related
respiratory symptoms most consistent with irritant-induced airway hyperreactivity and upper
respiratory symptoms secondary to exposure to irritants. He essentially reiterated the findings set
forth in his prior reports and restated his opinion that appellant had developed a syndrome best
described as airway hyperreactivity induced by chemical inhalation. Dr. Utell noted that he
reviewed six SDS reports related to the floor cleaning agents of concern provided by appellant.
He related that a major chemical, monoethanolamine, had been associated with respiratory irritants
linked to the cause of asthma in the workplace. Dr. Utell advised that it was virtually impossible
to determine the specific chemical agent that caused appellant’s symptoms due to the type of
clinical situations with intolerance to an indoor environment. He concluded that the described
workplace exposure was the proximate cause of her respiratory complex. Dr. Utell did not believe
that appellant should continue to work in the employing establishment’s buildings where she
developed this sensitivity. He advised that her respiratory disease was a permanent condition.
OWCP, in a decision dated May 25, 2017, denied modification of its prior decisions,
finding that appellant had not submitted medical evidence, which contained a valid diagnosis in
connection with the accepted factors of her federal employment. In reaching this decision, it noted
that it had reviewed evidence from both OWCP File Nos. xxxxxx804 and xxxxxx227.
Appellant, through counsel, appealed to the Board on November 2, 2017. In an order dated
May 2, 2018, the Board set aside OWCP’s May 25, 2017 decision and remanded the case for
OWCP to combine the present case record with the evidence from OWCP File No. xxxxxx227 . 6
The Board noted that the evidence from OWCP File No. xxxxxx227, upon which OWCP based its
denial of her occupational disease claim, was not contained in the record on appeal. The Board
found that, for a full and fair adjudication in accordance with OWCP procedures, the case records
needed to be combined. The Board directed that, after this combining of case files, OWCP should
issue a de novo merit decision on whether appellant sustained a new work injury or a recurrence
of disability due to her previously accepted employment injury.
On June 14, 2018 OWCP combined the case records with OWCP File No. xxxxxx227
serving as the master file.
OWCP, in a development letter dated July 20, 2018, advised appellant that it appeared that
she was claiming a recurrence of disability causally related to her accepted December 14, 2014
employment injury. It requested that she submit additional factual and medical evidence in support
of her claim. OWCP provided a questionnaire for appellant’s completion and requested that she
submit a narrative statement from her attending physician. It afforded her 30 days to respond.
6

Supra note 3.

6

Counsel, in a letter dated August 15, 2018, noted that both appellant and the employing
establishment had previously responded to the questions in its July 20, 2018 development letter.
He related that she had detailed the circumstances surrounding her work-related exposure that was
the subject of her occupational disease claim for a July 2, 2015 employment injury and the
employing establishment had not controverted the claim. Counsel further noted that the March 22,
2016 OWCP decision found that factors of appellant’s federal employment had been established.
As an update, he related that she had no hobbies or other activities resulting in any similar
exposures and no other injuries or medical conditions. Counsel maintained that detailed medical
evidence, specifically Dr. Utell’s November 10, 2016 report, had been previously submitted which
established appellant’s employment-related injuries and conditions.
By decision dated September 24, 2018, OWCP denied appellant’s occupational disease
claim, finding that the medical evidence of record did not contain a valid medical diagnosis in
connection with the accepted factors of her federal employment. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,7 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.8 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.9
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition;10 (2) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed;11 and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for which

7

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
8
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

11

Michael R. Shaffer, 55 ECAB 386 (2004).

7

compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.12
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.13
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her claim, appellant submitted several reports from her physician, Dr. Utell,
who discussed her accepted work-related exposure to cleaning agents and found work-related
respiratory symptoms most consistent with irritant-induced airway hyperreactivity and upper
respiratory symptoms secondary to exposure to irritants. Dr. Utell opined that she had developed
airway hyperreactivity induced by chemical inhalation. By decision dated September 24, 2018,
OWCP denied appellant’s occupational disease claim finding that the medical evidence of record
did not contain a valid medical diagnosis in connection with the accepted factors of her federal
employment.
Airway hyperreactivity induced by chemical inhalation is the same condition accepted
under OWCP File No. xxxxxx227. As the medical evidence of record establishes a diagnosed
condition, the case must be remanded for consideration of the medical evidence as to causal
relationship. Following such further development as deemed necessary, OWCP shall issue a de
novo decision.14
CONCLUSION
The Board finds that this case is not in posture for decision.

12

Beverly A. Spencer, 55 ECAB 501 (2004).

13

See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

The Board notes that while OWCP referenced its development of appellant’s November 18, 2015 recurrence
claim in its September 24, 2018 decision, it has not issued a final decision on this issue. Thus, the recurrence claim
remains open for adjudication by OWCP.
14

8

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 17, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Litchfield, IL, Employer
__________________________________________

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

Docket No. 17-1137
Issued: September 14, 2017

Case Submitted on the Record

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

JURISDICTION
On May 2, 2017 appellant, through counsel, filed a timely appeal from a March 24, 2017,
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 26, 2015 appellant, then a 51-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that constant grasping and handling of mail caused severe
pain to her wrists and arms. She also noted that she had sustained “other disorders” due to the
repeated trauma. Appellant did not stop work. On the reverse side of the claim form, appellant’s
supervisor indicated that appellant would continue her current duties until the work injury was
approved. She noted that appellant was in constant pain, but was fulfilling her carrier duties so
far.
In support of her claim, appellant submitted a February 13, 2015 progress note wherein
Dr. Douglas Byers, a Board-certified family practitioner, noted that appellant complained of
bilateral lower arm pain which started over a week ago. Dr. Byers noted that appellant worked
as a mail carrier and that she may have a repetitive motion injury. He diagnosed lateral
epicondylitis.
By letter dated March 30, 2015, OWCP informed appellant that further information was
necessary to support her claim, and afforded her 30 days to submit this information.
Specifically, it informed her that the factual component of fact of injury had not been
established. OWCP informed appellant that her statement that the cause of the injury was
constant grasping and handling of mail was merely a general description. It also advised her that
she must provide a detailed description of the specific work factors that caused her injury, as she
had not submitted sufficient medical evidence in support of her case. Appellant did not respond
to this request for additional information.
By decision dated April 30, 2015, OWCP denied appellant’s claim. It found that the
evidence of record was insufficient to establish that the employment factors occurred as
described because grasping and handling mail was a general description of employment duties.
OWCP further noted that to meet her burden of proof appellant would have to submit medical
evidence establishing causal relationship between a medical diagnosis and the established
employment factors.
On May 13, 2015 appellant requested reconsideration. In support of her claim, she
submitted an April 29, 2015 progress note wherein Dr. Craig McKee, appellant’s treating Boardcertified plastic surgeon specializing in hand surgery, diagnosed left-sided de Quervain’s disease.
Dr. McKee noted that appellant worked as a mail carrier and that, as he understood the work of a
postal delivery person, he believed that her complaint was causally related to her work. In an
addendum, he indicated that he gave cortisone injections to appellant’s left 1st dorsal
compartment. In a May 12, 2015 follow-up note, Dr. McKee indicated another area of
tenderness which would be left 1st carpometacarpal joint arthritis. He opined that there was no
doubt that appellant’s joint pain was related to her work duties.
By decision dated August 5, 2015, OWCP denied modification of the April 30, 2015
decision because appellant had not provided a detailed description of the work factors that she
believed caused her current medical condition.

2

On July 26, 2016 appellant, through counsel, requested reconsideration. In support
thereof, appellant submitted additional progress notes from Dr. McKee. In a June 24, 2016 note,
Dr. McKee diagnosed left 1st dorsal compartment syndrome. He noted that appellant had
continuing symptoms in the left radial wrist, and some swelling over the 1st dorsal compartment.
Dr. McKee noted a markedly positive Finklestein’s test. However, in a July 6, 2016 report, he
noted a negative x-ray related to her left first dorsal compartment syndrome. Dr. McKee
recommended surgery for release of the left first dorsal compartment. In an operative report
dated July 7, 2016, he indicated that he performed a release of left first dorsal compartment. In a
July 22, 2016 note, Dr. McKee noted that appellant was two weeks’ post release of the left 1st
dorsal compartment, and had noticed some improvement.
By decision dated March 24, 2017, OWCP denied modification of the August 5, 2015
decision. It found that appellant did not respond to the factual development questionnaire or
submit a statement explaining the specific work factors or activities that she alleged caused or
aggravated her arm condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that the injury was sustained while in the performance of duty as alleged, and
that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.4
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 must include 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 nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.5
3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999).

5

Id.

3

ANALYSIS
Appellant alleged that she had severe pain in her wrists and arms due to constant grasping
and handling of mail, and “other disorders” due to repeated trauma. OWCP denied her claim in
decisions dated April 30 and August 5, 2015, and March 24, 2017. It found that the evidence of
record was insufficient to establish the specific employment factors which appellant believed
caused her condition.
The Board finds that appellant has not established that she sustained an occupational
disease in the performance of duty.
In a letter to appellant dated March 30, 2015, OWCP requested additional medical and
factual evidence from appellant, including a description of the work duties which she believed
caused or contributed to her diagnosed conditions. Appellant never responded to this letter.
Furthermore, despite multiple decisions denying her claim for this reason, appellant never
submitted a factual statement or other evidence detailing the specific duties of her job which she
alleged caused her condition. As part of her burden of proof, appellant must provide a detailed
description of the employment factors or conditions that she believes caused or adversely
affected the condition or conditions for which compensation is claimed.6 It is important that
appellant provide that factual statement identifying the factors alleged to have caused the
diagnosed conditions so that the medical evidence can be evaluated to determine whether the
employment factors identified by the claimant were the proximate cause of the alleged
condition.7 As she failed to provide this information, appellant has failed to meet her burden of
proof.8
On appeal counsel argues that appellant’s thoughts on what job duties caused her injury
are irrelevant. Although the issue of causal relationship is a medical one and must be resolved
by probative medical opinion from a physician,9 appellant must first establish the employment
factors which she alleges caused or contributed to her claimed condition.10 As she has not
established the employment factors alleged to have caused an injury, appellant failed to meet her
burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

6

C.C., Docket No. 14-0939 (issued July 6, 2015); Penelope C. Owens, 54 ECAB 684 (2003).

7

Supra note 4.

8

See D.J., Docket No. 15-1484 (issued December 24, 2015).

9

B.B., Docket No. 17-0919 (issued June 28, 2017).

10

T.B., Docket No. 17-0444 (issued May 5, 2017).

4

CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish an
occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 24, 2017 is affirmed.
Issued: September 14, 2017
Washington, DC

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

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

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

5


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

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

Docket No. 16-1478
Issued: December 23, 2016

Case Submitted on the Record

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

JURISDICTION
On July 18, 2016 appellant filed a timely appeal from a March 14, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since the last merit decision dated January 18, 2011 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 this case.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
On appeal appellant contends that OWCP erred in that it overlooked factual and medical
history in support of his claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts as set forth in the Board’s
prior decisions are incorporated herein by reference. The relevant facts are as follows.
On July 24, 1992 appellant, then a 35-year-old maintenance laborer, filed a traumatic
injury claim (Form CA-1) alleging that on July 23, 1992 he was on an elevator that jumped a
floor and then jammed halfway between two floors. He related that this incident caused upper
and lower back injuries. By decision dated October 27, 1992, OWCP accepted that appellant
sustained thoracic and lumbar strain and sprain as a result of the July 23, 1992 employment
incident.
Appellant stopped work on the date of the incident and returned to full-time limited-duty
work on May 23, 1994. He claimed a recurrence of disability on August 25, 1999, and this
recurrence claim was denied by OWCP in a decision dated December 6, 1999. OWCP
determined that appellant failed to demonstrate a causal relationship between the claimed
recurrence of disability on August 25, 1999 and the accepted employment injury of
July 23, 1992. Appellant requested a hearing before an OWCP hearing representative on
January 2, 2000. On November 6, 2000 an OWCP hearing representative affirmed the denial of
the recurrence claim and found that appellant had not demonstrated a new injury.
On September 9, 2009 OWCP’s Branch of Hearings and Review received an undated
letter in which appellant related that he was exercising his appeal rights from the November 6,
2000 decision. OWCP’s Branch of Hearings and Review denied appellant’s request for an oral
hearing before an OWCP hearing representative in a decision dated December 10, 2009.
Appellant thereafter filed an appeal with the Board on December 15, 2009. In a decision dated
October 29, 2010, the Board set aside the December 15, 2009 decision and remanded the case
after determining that appellant actually requested reconsideration by OWCP, and not a hearing
before an OWCP hearing representative.3
In a decision dated January 18, 2011, OWCP reviewed appellant’s case on the merits, but
denied modification of its earlier decision because appellant had not provided a well-reasoned
and rationalized physician’s opinion that supported that the alleged recurrence on August 25,
1999 was causally related to the employment injuries. Appellant again requested reconsideration
on October 5, 2011. On December 21, 2011 OWCP denied reconsideration, finding that the
evidence was insufficient to warrant further review. Appellant again filed an appeal with the
Board on February 6, 2012 and the denial of his request for reconsideration was affirmed by the
Board in a decision dated September 18, 2012.4

2

Docket No. 10-484 (issued October 19, 2010); Docket No. 12-677 (issued September 18, 2012).

3

Docket No. 10-484 (issued October 19, 2010).

4

Docket No. 12-677 (issued September 18, 2012).

2

Appellant again requested reconsideration on August 19, 2014. OWCP denied
appellant’s August 19, 2014 request for reconsideration, in a decision dated December 17, 2015,
as his request was untimely filed and failed to demonstrate clear evidence of error.
On December 21, 2015 appellant again requested reconsideration before OWCP and a
schedule award.5 He related his own summarization of the medical evidence of record. In
support of his reconsideration request, appellant submitted numerous documents and decisions
that were already part of his claim. He resubmitted reports by Dr. Richard H. Kaplan, a Boardcertified physiatrist, dated February 7, April 8, and October 14, 1996; and December 6, 1999.
The previously submitted reports also included an October 8, 1993 report by Dr. Frank A.
Mattei, a Board-certified orthopedic surgeon; a report by Dr. Kevin Mansmann, a Board-certified
orthopedist, and diagnostic studies dated December 3, 1999.
In addition, appellant resubmitted a January 17, 2012 report wherein Dr. Randall Smith, a
Board-certified orthopedic surgeon, indicated that appellant had a low back disc problem that
was originally caused by a 1991 injury, aggravated significantly by the July 23, 1992
employment injury and then somewhat by the 1993 and 1999 injuries. He noted that the damage
to the disc was done either in the 1991 or 1992 incident, and caused the tearing of the annular
ligament which allowed the disc to herniate and thus lead to appellant’s chronic lumbar
intractable pain condition with sciatica. Dr. Smith opined that as a result, appellant remained
disabled which needed ongoing treatment.
Appellant also resubmitted a March 14, 2012 report wherein Dr. Kaplan noted that he has
been treating appellant along with Dr. Smith. Dr. Kaplan noted that although appellant was
originally able to return to work after the July 23, 1992 employment injury, in the later portion of
that decade his repeat diagnostic evaluations indicated significant disc pathology, multiple disc
herniations, advancing degenerative changes in the lumbar spine, and that these conditions
ultimately led to chronic, intractable lumbar low back pain with associated sciatica and radicular
symptoms. He noted that when he last saw appellant in December 1999 he was still
symptomatic and experiencing persistent back and leg pain which began originally with the 1992
accident. Dr. Kaplan noted that appellant returned to his office on March 14, 2012 and was still
symptomatic and disabled. He noted that appellant’s advancing years have not allowed him to
recover and that he continues to suffer from the disabling effects of the 1992 employment injury.
Dr. Kaplan opined that appellant remained disabled as a result of the injuries he sustained in the
elevator accident of July 23, 1992.
By decision dated March 14, 2016, OWCP denied appellant’s claim for reconsideration
as it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant’s application for review must be received within one year of the date of that decision.6
5

OWCP has not issued a final decision regarding appellant’s request for a schedule award.

6

20 C.F.R. § 10.607(a).

3

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 The one-year
period begins on the date of the original decision. However, a right to reconsideration within one
year accompanies any subsequent merit decision on the issues. This includes any hearing or
review of the written record decision, any denial of modification following reconsideration, any
merit decision by the Board, and any merit decision following action by the Board.8
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, OWCP must nevertheless
undertake a limited review to determine whether the application demonstrates clear evidence of
error.9 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review shows clear evidence of error on the part of OWCP.10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.11 The evidence must be positive, precise and explicit and
must manifest on its face that OWCP committed an error.12 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.13 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.14 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.15 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or demonstrate 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.16

7

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

8

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

9

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

10

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5
(February 2016).
11

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

12

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

13

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

14

Supra note 12.

15

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

16

Leon D. Faidley, Jr., supra note 7.

4

ANALYSIS
The Board finds that OWCP properly declined to reopen appellant’s claim for
reconsideration of the merits as the request for reconsideration was untimely filed and failed to
demonstrate clear evidence of error.
Since more than one year elapsed from the date of issuance of the January 18, 2011 merit
decision and the date of appellant’s December 21, 2015 request for reconsideration, the Board
finds that OWCP properly found that it was untimely filed.
The Board further finds that OWCP properly denied appellant’s untimely request for
reconsideration as he failed to demonstrate clear evidence of error. OWCP initially denied
appellant’s claim for a recurrence of his July 23, 1992 employment injury on August 25, 1999. It
determined that appellant had not demonstrated a recurrence of disability on August 25, 1999
causally related to his accepted employment injury. Accordingly, in order to demonstrate clear
evidence of error, appellant must submit evidence demonstrating clear evidence of error in
OWCP’s determination that the medical evidence did not demonstrate a causal relationship
between appellant’s accepted injury of July 23, 1992 and the alleged recurrence on
August 25, 1999.
Appellant requested reconsideration on multiple occasions. His most recent request for
reconsideration was filed on December 21, 2015. At that time, appellant resubmitted multiple
items of evidence. All of these items were previously in the record, including the medical
reports of Dr. Kaplan dated February 7, April 8, and October 14, 1996 and December 6, 1999;
the December 3, 1999 report by Dr. Mansmann, the January 17, 2012 report by Dr. Smith, the
October 8, 1993 report by Dr. Mattei, and the diagnostic studies conducted on
December 3, 1999. The Board notes that the January 17, 2012 report by Dr. Smith and the
March 14, 2012 report by Dr. Kaplan were submitted subsequent to the last merit review of the
evidence, but before the previous December 17, 2015 decision denying reconsideration under the
clear evidence of error standard. Therefore, no new medical evidence was submitted with
appellant’s current request for reconsideration, filed on December 21, 2015. As the medical
reports submitted on reconsideration were duplicative of reports previously of record, appellant
has not explained how the resubmission of these reports raise a substantial question concerning
the correctness of OWCP’s decision.17 Furthermore, none of the medical reports were sufficient
to shift the weight of the evidence in appellant’s favor and do not demonstrate clear evidence of
error.18 The Board notes that clear evidence of error is intended to represent a difficult standard.
The submission of a detailed well-rationalized medical report which, if submitted before the
denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.19

17

G.B., Docket No. 16-0319 (issued April 6, 2016).

18

Id.

19

D.G., 59 ECAB 455 (2008).

5

On appeal, appellant argues the merits of his claim, contending that OWCP overlooked
medical evidence, medical complications, and noting his concerns regarding a job switch. As
previously noted, the Board does not have jurisdiction over the merits of the claim. Appellant
has not presented evidence or argument that raises a substantial question as to the correctness of
OWCP’s decision for which review is sought.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 14, 2016 is affirmed.
Issued: December 23, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6