United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
TENNESSEE VALLEY AUTHORITY,
FORT LOUDON DAM HYDRO PLANT,
Lenoir City, TN, Employer
__________________________________________

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Appearances:
James T. Bobo, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0261
Issued: September 29, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 16, 2020 appellant, through counsel, filed a timely appeal from a
November 2, 2020 nonmerit decision of the Office of Workers’ Compensation Programs. As more
than 180 days elapsed from the last merit decision dated August 8, 2019 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the 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 OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 5, 2019 appellant, then a 63-year-old retired power plant/hydro operator, filed
an occupational disease claim (Form CA-2) alleging that he developed hearing loss due to factors
of his federal employment, including exposure to rotating equipment, generators, turbines, and
large air compressors.3 He noted that he first became aware of his condition and its relationship
to his federal employment on November 21, 2018.
In a November 26, 2018 audiometric report, David T. Cope, Au.D., an audiologist, noted
symptoms of decreased hearing bilaterally which appellant attributed to significant occupational
and military noise exposure. He conducted testing and diagnosed mild-to-moderate sensorineural
hearing loss bilaterally.
In a letter dated December 7, 2018, Dr. Scott E. Davis, a family practitioner, indicated that
appellant was being followed by Dr. Cope for gradually occurring, noise-induced bilateral hearing
loss with consequential tinnitus with episodic dizziness and vertigo. He opined that, in accordance
with the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),4 the November 21, 2018 audiogram revealed 23.4 percent binaural
hearing loss. Dr. Davis further opined that appellant was entitled to an additional five percent
permanent impairment for tinnitus and that, within a reasonable degree of medical certainty, his
hearing loss was causally related to noise exposure at the employing establishment’s facilities.
In a February 26, 2019 development letter, OWCP advised appellant of the type of
evidence needed to establish his claim and provided a questionnaire for his completion. In a
separate letter of even date, it requested that the employing establishment provide comments from
a knowledgeable supervisor on the accuracy of his statements, describe the sources of exposure to
noise, and provide a copy of all medical examinations pertaining to hearing or ear problems,
including preemployment examination and audiograms. OWCP afforded both parties 30 days to
respond.
Appellant noted in a March 21, 2019 response to OWCP’s hearing loss questionnaire, that
he worked for the employing establishment from November 1977 until July 2005. During that
time, he was exposed to hydro powerhouse equipment including generators, turbines, powerhouse
compressors, evacuation air blow-down equipment, cooling fans, water pumps, spillway gate
machinery, and air and electric power tools. Appellant further related that he was also exposed to
switchyard equipment including transformers which induced continuous 60 Hertz frequency, as
well as circuit breakers and cooling fans. Prior to his federal employment, he was enlisted in the
United States Army from August 1972 through August 1975, during which time he was exposed
to live weapons fire, helicopter transportation, vehicle engines, compressors, and power tools.
3

Appellant retired from the employing establishment on July 23, 2005.

4

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

2

In a report dated April 10, 2019, Whitney R. Mauldin, Au.D., an audiologist, indicated that
she reviewed appellant’s Form CA-2, medical records, work history, and audiometric record. She
opined that appellant did not meet the criteria to establish hearing loss causally related to exposure
to noise at work. Dr. Mauldin explained that he had no exposure to any level of noise as a federal
employee for the past 14 years due to his retirement, and opined that noise-induced hearing loss is
not a latent condition. She further explained that hearing loss due to noise occurs at the time of
the exposure, not many years later.
OWCP also received a report of even date summarizing appellant’s audiometric testing
results through the employing establishment between September 22, 1983 and July 19, 2005.
On May 2, 2019 OWCP referred appellant, along with the medical records, and a statement
of accepted facts (SOAF), for audiological testing by Kenneth C. Parker, Au.D., an audiologist ,
and a second opinion evaluation with Dr. Joseph A. Motto, a Board-certified otolaryngologist.
In a report dated May 17, 2019, Dr. Motto reviewed the SOAF, performed a physical
examination, and completed OWCP’s hearing loss questionnaire. He indicated that there was no
significant variation from the SOAF and noted that appellant’s last noise exposure with the
employing establishment was in 2005. Dr. Motto diagnosed sensorineural hearing loss and opined
that the hearing loss was not attributable to exposures while working for the employing
establishment. He explained that the audiometric testing was not consistent with noise-induced
hearing loss.
By decision dated August 8, 2019, OWCP denied the claim, finding that the evidence of
record was insufficient to establish a causal relationship between appellant’s diagnosed hearing
loss and the accepted factors of his federal employment.
On August 11, 2020 appellant, through counsel, requested reconsideration of OWCP’s
August 8, 2019 decision.
In support of the request, appellant submitted a July 14, 2020 narrative report of Dr. Mark
Gurley, a Board-certified otolaryngologist, who noted appellant’s history of working as a power
plant operator at the employing establishment for over 30 years. Dr. Gurley indicated that he
reviewed extensive medical and hearing records, which he opined revealed a steady decline in
appellant’s hearing through the years. He reviewed audiometric testing conducted on that date and
diagnosed bilateral sensorineural hearing loss, which he opined was “likely noise induced.”
In further support of his request, appellant resubmitted the May 4, 2020 audiological report
of Dr. Cope and the July 14, 2020 testing results by Dr. Katie Fuller, an audiologist.
By decision dated November 2, 2020, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
It stated, “You submitted new medical evidence which cannot be considered in arriving at a
determination of clear evidence of error.”

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LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.5 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP ’s
decision for which review is sought. 6 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 7
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 8
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP ’s most recent merit
decision was in error. 9 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.10 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record.11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP. 12 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence, which does not raise a
substantial question concerning the correctness of OWCP’s decision, is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must 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.13

5
5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
6

20 C.F.R. § 10.607(a).

7

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

8
G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
9

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).
10

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 7 at Chapter 2.1602.5 (February 2016).
11

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

12

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 7 at Chapter 2.1602.5(a) (February 2016).

13

C.M., Docket No. 19-1211 (issued August 5, 2020).

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OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence, which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report, which if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.14 The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP. 15
ANALYSIS
The Board finds that OWCP properly determined that appellant’s August 11, 2020 request
for reconsideration was untimely filed.
The last merit decision of record was issued on August 8, 2019. As appellant’s request for
reconsideration was received by OWCP on August 11, 2020, more than one year after the
August 8, 2019 merit decision, pursuant to 20 C.F.R. § 10.607(a), the Board finds the request for
reconsideration was untimely filed. Consequently, appellant must demonstrate clear evidence of
error by OWCP in denying the claim. 16
The Board further finds, however, that OWCP did not make sufficient findings regarding
the evidence submitted in support of the reconsideration request. 17 OWCP denied appellant’s
request for reconsideration without complying with the review requirements of FECA and its
implementing regulations. 18 Section 8124(a) of FECA provides that OWCP shall determine and
make a finding of fact and make an award for or against payment of compensation. 19 Its
regulations at section 10.126 provide that the decision of the Director of OWCP shall contain
findings of fact and a statement of reasons. 20 As well, OWCP’s procedures provide that the
reasoning behind OWCP’s evaluation should be clear enough for the reader to understand the
precise defect of the claim and the kind of evidence which would overcome it. 21
In denying appellant’s August 11, 2020 reconsideration request, OWCP noted: “You
submitted new medical evidence which cannot be considered in arriving at a determination of clear

14

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 7 at Chapter 2.1602.5(a) (February 2016).

15

D.S., Docket No. 17-0407 (issued May 24, 2017).

16

20 C.F.R. § 10.607(b); see R.T., Docket No. 19-0604 (issued September 13, 2019); see Debra McDavid, 57
ECAB 149 (2005).
17

See Order Remanding Case, J.K., Docket No. 20-0556 (issued August 13, 2020); Order Remanding Case, C.D.,
Docket No. 20-0450 (issued August 13, 2020); Order Remanding Case, T.B., Docket No. 20-0426 (issued
July 27, 2020).
18

See C.G., Docket No. 20-0051 (issued June 29, 2020); T.P., Docket No. 19-1533 (issued April 30, 2020); see
also 20 C.F.R. § 10.607(b).
19

5 U.S.C. § 8124(a).

20

20 C.F.R. § 10.126.

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

5

evidence of error.” However, it provided no further discussion relative to the specific medical
evidence submitted. 22
The Board will, therefore, set aside OWCP’s August 11, 2020 decision and remand the
case for an appropriate decision on appellant’s untimely reconsideration request, which describes
the evidence submitted on reconsideration and provides detailed reasons for accepting or denying
the reconsideration request.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s August 11, 2020 request
for reconsideration was untimely filed. However, the Board further finds that the case is not in
posture for decision with regard to whether the untimely reconsideration request demonstrates
clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the November 2, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part, set aside in part, and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: September 29, 2021
Washington, DC

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

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

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

22

See Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., supra note 16; R.C., Docket
No. 16-0563 (issued May 4, 2016).

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

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

Docket No. 17-0508
Issued: September 13, 2017

Case Submitted on the Record

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

JURISDICTION
On January 6, 2017 appellant filed a timely appeal from an August 4, 2016 merit decision
and October 18 and December 9, 2016 nonmerit decisions of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish an injury
causally related to an accepted July 17, 2014 employment incident; and (2) whether OWCP

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2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence following the August 4, 2016 decision. However, since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57
ECAB 126 (2005).

properly denied appellant’s request for reconsideration of the merits of the claim pursuant to 5
U.S.C. § 8128(a).
FACTUAL HISTORY
On July 21, 2014 appellant, then a 59-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on July 17, 2014 she sustained injuries to her left shoulder and left knee
when she tripped on a round plastic strap and fell on the workroom floor. She did not stop work.
Appellant provided a handwritten statement describing the July 17, 2014 employment
incident. She related that she was sorting letter mail when she heard the truck carrying flat mail
and went to the dock to help with staging equipment. Appellant indicated that she was stepping
off the ledge of the sorting station when her feet suddenly got hooked on a plastic strap. She fell
down and hit her left shoulder and left knee on the floor. Appellant reported that she informed
her supervisor about her fall and showed her the plastic strap.
In a September 29, 2014 report, Kirsten Deeds, a certified physician assistant, noted
appellant’s complaints of left shoulder pain after a fall at work on July 17, 2014. Upon
examination of appellant’s shoulders, she observed mild tenderness to palpation of anterior
shoulder joint. Range of motion was full, but caused discomfort in the anterior and posterior
shoulder. Ms. Deeds diagnosed left shoulder injury.
Appellant underwent an x-ray examination of the left shoulder by Dr. Frank J. Welte, a
Board-certified diagnostic radiologist, who noted in a September 29, 2014 x-ray scan report, that
appellant had degenerative changes with no acute radiographic abnormality.
By letter dated February 12, 2015, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested that she respond to the attached
questionnaire to establish that the July 17, 2014 incident occurred as alleged and provide
additional medical evidence to establish that she sustained a diagnosed condition as a result of
the alleged incident. Appellant was afforded 30 days to submit the requested information.
Dr. John R. Corsetti, a Board-certified orthopedic surgeon, treated appellant and related
in a January 7, 2015 report that she complained of left shoulder and right knee pain dating back
to a “work-related fall in July.” He noted that appellant had a right knee arthroscopy and found
to have grade IV two compartment arthritis. Dr. Corsetti reported that physical examination of
appellant’s left shoulder showed positive impingement sign, full motion, and good strength and
good mechanics. He indicated that appellant’s acromioclavicular (AC) joint was mildly irritable.
Examination of appellant’s right knee showed no deformity, no fluid, and full motion with
diffuse anteromedial irritability. Dr. Corsetti related that a left shoulder x-ray scan revealed
Type 2 acromion, no lytic or blastic lesions, and no chronic degenerative wear. He diagnosed
left shoulder traumatic tendinitis and right knee arthritis. Dr. Corsetti completed a work status
note, which recommended that appellant work light duty with restrictions of no frequent lifting
over 5 pounds, no lifting or carrying over 10 pounds, and no lifting her left arm above horizontal
level, and no repetitive use of her left upper extremity.

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OWCP denied appellant’s claim in a decision dated March 25, 2015. It accepted that the
July 17, 2014 employment incident occurred as alleged and that appellant had been diagnosed
with left shoulder tendinitis and right knee arthritis. OWCP denied the claim, because the
medical evidence of record was insufficient to establish that appellant’s diagnosed conditions
were causally related to the accepted incident.
On April 14, 2015 appellant requested a review of the written record before an OWCP
hearing representative. She resubmitted Dr. Corsetti’s January 7, 2015 report and work status
note.
Appellant also provided a statement dated April 8, 2015. She described that on July 17,
2014 she fell down and hit her left shoulder and left knee. Appellant explained that her primary
doctor was not available to treat her, so she could only see the physician assistant. She noted that
she had submitted a report from Dr. Corsetti, which included a request for therapy. Appellant
requested approval for therapy for her left shoulder because she experienced left shoulder pain
while sorting mail at work and at night. She noted that she was also waiting for knee
replacement surgery. Appellant related that as a clerk, she sorted letters, magazines, and parcels.
She explained that she started work at 3:00 a.m. and by 10:00 a.m. she was in pain. Appellant
indicated that even though she was in pain, she kept working.
In a decision dated August 14, 2015, an OWCP hearing representative affirmed the
March 25, 2015 decision. He found that the medical evidence of record failed to establish causal
relationship between appellant’s diagnosed left shoulder condition and the accepted July 17,
2014 employment incident.
On August 17, 2015 OWCP received a physical therapy note dated July 15, 2015.
Dr. Anne B. Shain, a Board-certified internist, examined appellant and in a November 9,
2015 progress note indicated that appellant sustained a knee injury which occurred at work on
March 27, 2013. She noted that appellant underwent a total right knee replacement surgery a
month prior and reported that she was doing well. Dr. Shain reviewed appellant’s history and
conducted an examination. She observed mild swelling of appellant’s right knee and noted her
ability to flex and extend without difficulty. Dr. Shain diagnosed status post total right knee
replacement.
On March 7, 2016 appellant requested reconsideration and resubmitted Dr. Corsetti’s
January 7, 2015 report.
Appellant also submitted a January 8, 2016 report from Henry J. Casagrande, Jr., a
certified physician assistant. Mr. Casagrande related that appellant returned to his office for
complaints of severe pain through her shoulder. He related that appellant was last examined in
January 2015 and diagnosed with left shoulder traumatic tendinopathy. Upon physical
examination of appellant’s shoulder, Mr. Casagrande observed moderate cuff weakness through
scaptation and forward elevation and resistance with moderate-to-significant pain. He reported
that appellant demonstrated considerable guarding and restrictions with pain, trying to reach
overhead about 140 degrees, and full passive arc of motion. Mr. Casagrande diagnosed left
shoulder tendinopathy, but noted that there were concerns for possible attritional cuff tear.

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In a February 29, 2016 report, Dr. Corsetti related appellant’s complaints of ongoing left
shoulder pain, which dated back to a work-related traumatic fall. He reported no deformity, full
motion, good strength, and positive impingement upon examination. Dr. Corsetti diagnosed left
shoulder traumatic tendinitis. He recommended a left shoulder magnetic resonance imaging
(MRI) scan to rule out a possible rotator cuff tear based on appellant’s trauma.
Dr. Amy Oliveira, a Board-certified diagnostic radiologist, conducted a left shoulder MRI
scan and indicated in a March 13, 2016 report that appellant had a history of a fall in July 2014.
She noted that appellant had complained of moderate posterior left shoulder pain for the past 1½
years. Dr. Oliveira reported full-thickness tear in the supraspinatus tendon, degenerative tearing
of the superior labrum, mild AC degenerative change with bony proliferation and subchondral
edema in the distal clavicle, and synovitis in the subscapularis recess. She diagnosed fullthickness tear of supraspinatus, mild myotendinous partial tear of the infraspinatus and a partial
interest tear at its attachment, attenuated appearance of the intra-articular biceps tendon,
suggesting partial tear, and mild acromioclavicular degenerative change.
In an April 11, 2016 report, Dr. Corsetti noted that the left shoulder MRI scan confirmed
a large cuff tear with retraction beyond mild head, which dated back to a July 17, 2014 fall injury
at work. Upon physical examination of appellant’s shoulder, he observed full bulk pain for
motion, two-point weakness, moderate-to-severe cuff irritability, and mildly irritable AC joint.
Dr. Corsetti diagnosed left shoulder large cuff tear with AC joint arthropathy. He reported that
“based on history taken, the injury of July 17, 2014 is the major cause of the diagnosis.”
On April 19, 2016 OWCP received Dr. Welte’s September 29, 2014 x-ray scan report
and Mr. Casagrande’s January 8, 2016 report, which were already of record.
In an undated statement received by OWCP on May 17, 2016, appellant related that in
April 2016 her doctor had shown her the results of her MRI scan and informed her that she had a
big tear of the left shoulder. She noted that her physician advised her that if she waited longer to
get it repaired, he would not be able to fix it and she would continue to be in unbearable pain.
Appellant requested that OWCP review her claim so that the tear could still be repaired.
Appellant resubmitted Mr. Casagrande’s January 8, 2016 report and Dr. Corsetti’s
February 29, 2016 report.
In a July 22, 2016 statement, appellant indicated that she was enclosing the note from
Dr. Corsetti regarding his findings about her left shoulder large cuff tear based on the results of
the MRI scan. She noted that the last steroid injection that she had received on April 11, 2016
was wearing off and the pain was returning. Appellant pointed out that her claim originated in
2014 and it was now 2016. She requested that a decision be issued right away because she could
not stand her left shoulder pain and was running out of pain medication. Appellant also noted
that she needed to have surgery soon or else her doctor would not be able to fix it anymore. She
resubmitted Dr. Corsetti’s April 11, 2016 report.
By decision dated August 4, 2016, OWCP denied modification of the August 14, 2015
decision. It found that the medical evidence of record failed to establish causal relationship
between appellant’s diagnosed left shoulder condition and the accepted July 17, 2014

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employment incident. OWCP noted that although Dr. Corsetti provided an affirmative opinion
relating appellant’s left shoulder condition to the accepted July 17, 2014 employment incident,
he did not support his opinion with any medical rationale. It also noted that the evidence
submitted pertinent to appellant’s right shoulder condition was irrelevant to this claim.
On October 3, 2016 appellant requested reconsideration.
Appellant submitted a September 26, 2016 report of Dr. Andrew Lehman, a Boardcertified orthopedic surgeon. Dr. Lehman indicated that appellant was one-year status post right
total knee arthroplasty, was doing well in regards to her right knee replacement, and had reached
maximum medical improvement (MMI). He reported that examination of appellant’s right knee
showed well-healed incision with no significant effusion. Neurovascular status was intact and
strength was 5/5. Dr. Lehman opined that according to the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (2009) (hereinafter
A.M.A., Guides) appellant had 25 percent permanent right lower extremity impairment.
By decision dated October 18, 2016, OWCP denied appellant’s October 3, 2016
reconsideration request. It found that Dr. Lehman’s September 26, 2016 report was irrelevant
and immaterial to appellant’s claim as she had not alleged a right knee injury related to the
accepted July 17, 2014 employment incident.
On December 6, 2016 appellant again requested reconsideration.
In a November 16, 2016 report, Dr. Corsetti related that appellant had been under his care
for ongoing left shoulder complaints after a work-related fall on July 17, 2014. He noted that
appellant had complained of ongoing shoulder pain since that fall and a left shoulder MRI scan
had shown a large rotator cuff tear with retraction. Dr. Corsetti opined that appellant’s
“diagnosis of left shoulder rotator cuff tear is, in my opinion, causally related to the fall of
July 17, 2014.” He explained that there was “no evidence of preexisting sympathology” in the
shoulder. Dr. Corsetti also reported that “the mechanism of injury, a fall on the outstretched arm,
was entirely consistent with the diagnosis.”
By decision dated December 9, 2016, OWCP denied further merit review of appellant’s
claim. It found that appellant’s reconsideration request neither raised substantive legal questions
nor included new and relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any

3

5 U.S.C. § 8101 et seq.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

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specific condition or disability for work for which compensation is claimed is causally related to
that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.7 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.8 An employee may establish that the employment incident
occurred as alleged but fail to show that his or her disability or condition relates to the
employment incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of 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 factors 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 -- ISSUE 1
Appellant alleged that she sustained left shoulder and left knee conditions as a result of a
July 17, 2014 fall at work. OWCP accepted that the July 17, 2014 incident occurred as alleged.
However, it denied appellant’s claim, finding insufficient medical evidence to establish that her
diagnosed medical conditions were causally related to the accepted incident. The Board finds
that appellant failed to establish that she sustained an injury causally related to the July 17, 2014
injury.
With regard to the left shoulder condition, appellant was primarily treated by Dr. Corsetti
who provided reports dated January 7, 2015 to April 11, 2016. Dr. Corsetti related that appellant
complained of left shoulder and right knee pain due to a work-related fall in July. He provided
5

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

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

12

James Mack, 43 ECAB 321 (1991).

6

physical examination findings and diagnosed left shoulder tendinitis. In an April 11, 2016
report, Dr. Corsetti indicated that a left shoulder MRI scan confirmed a large cuff tear, which
dated back to a July 17, 2014 fall injury at work. He diagnosed left shoulder large cuff tear with
AC joint arthropathy. Dr. Corsetti reported that the July 17, 2014 injury was the primary cause
of the diagnosis, based upon appellant’s medical history. Although he provided an affirmative
opinion which supported causal relationship, Dr. Corsetti did not offer any rationalized medical
explanation to support his opinion. He appears to have relied heavily on appellant’s reported
lack of prior symptoms, but the Board has held that the fact that a condition manifests itself or
worsens during a period of employment,13 or that a work incident produced symptoms revelatory
of an underlying condition does not raise an inference of causal relationship between a claimed
condition and the employment incident.14 He did not explain the physiologic mechanism that
would have caused appellant’s diagnosed condition. A medical report is of limited probative
value on the issue of causal relationship if it contains a conclusion regarding causal relationship
which is unsupported by medical rationale.15
The Board has found that a physician must provide a narrative description of the
identified employment incident and a reasoned opinion on whether the employment incident
described caused or contributed to appellant’s diagnosed medical condition.16 For these reasons,
Dr. Corsetti’s reports fail to establish appellant’s claim.
Appellant also submitted a series of diagnostic examination testing. In a September 29,
2014 left shoulder x-ray scan report, Dr. Welte noted degenerative changes with no acute
radiographic abnormality. In a March 13, 2016 left shoulder MRI scan, Dr. Oliveira diagnosed
full-thickness tear in the supraspinatus tendon and degenerative tearing of the AC joint. While
these physicians provided medical diagnoses, they did not provide an opinion on the cause of
appellant’s left shoulder condition.17 The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.18
Dr. Shain’s November 9, 2015 progress note related appellant’s right knee injury of
March 27, 2013 and her current right knee complaints. The Board notes that appellant’s current
claim was for left, not right knee injury. Dr. Shain did not treat appellant for left knee
complaints and did not provide an opinion on causal relationship between the alleged left knee

13

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

14

J.D., Docket No. 06-1773 (issued January 29, 2007).

15

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-975 (issued February 6, 2009).

16

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

17

See L.A., Docket No. 16-1352 (issued August 28, 2017) (diagnostic testing reports, including MRI scan reports,
are of limited probative value as they do not specifically address causal relationship).
18

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

7

condition to the accepted July 17, 2014 employment incident. Her report is therefore of limited
probative value19
The medical reports dated September 29, 2014 and January 8, 2016 by physician
assistants, Ms. Deeds and Mr. Casagrande also fail to establish appellant’s traumatic injury claim
because physician assistants are not considered physicians as defined under FECA and their
medical opinions regarding diagnosis and causal relationship are of no probative value.20
The Board therefore finds that appellant has not met her burden of proof to establish an
injury causally related to the July 17, 2014 employment incident.
On appeal appellant explained that OWCP’s decisions were based on x-ray results, which
would not show a rotator cuff tear. She noted that only an MRI scan would show that kind of
injury. Appellant related that she was enclosing a recent November 16, 2016 doctor’s statement.
The Board’s jurisdiction, however, is limited to evidence that was before OWCP at the time it
issued its final decision. Accordingly, it may not consider this evidence for the first time on
appeal.21 The issue of causal relationship is a medical question that must be established by
probative medical opinion from a physician.22 As appellant has not submitted such probative
medical evidence in this case, the Board finds that she has not met her burden of proof to
establish her claim.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.23
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

19

R.E., Docket No. 10-0679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

20

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005). Section 8102(2) of FECA provides that the term
“physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law. R.H., Docket No. 16-1802
(issued February 1, 2017) a physician assistant is not a physician under FECA.
21

See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).

22

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, 57 ECAB 137 (2005).

23

5 U.S.C. § 8128(a).

8

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.24
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.25 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.26 If the request is timely but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.27
ANALYSIS -- ISSUE 2
In a decision dated August 4, 2016, OWCP denied modification of the August 14, 2015
denial decision, which found that the medical evidence of record failed to establish that
appellant’s left shoulder condition was causally related to the accepted July 17, 2014
employment incident. On October 3, 2016 OWCP received her request for reconsideration. In a
decision dated October 18, 2016, it denied further merit review of appellant’s case pursuant to 5
U.S.C. § 8128(a).
The Board finds that OWCP appropriately denied further merit review as appellant did
not submit any evidence with her reconsideration request to warrant merit review under 5 U.S.C.
§ 8128(a).
Appellant did not attempt to show that OWCP erroneously applied or interpreted a
specific point of law, or advance a relevant legal argument not previously considered by OWCP.
Along with her reconsideration request, appellant submitted a September 26, 2016 report
by Dr. Lehman who noted that appellant was one-year status post right total knee arthroplasty
and was doing well. Dr. Lehman provided examination findings and indicated that appellant had
reached maximum medical improvement. The issue on which OWCP denied appellant’s
traumatic injury claim, however, was causal relationship between appellant’s diagnosed left
shoulder condition and the accepted July 17, 2014 employment incident. The Board notes that
Dr. Lehman’s September 26, 2016 report did not address appellant’s left shoulder condition.
The Board has found that the submission of evidence that does not address the particular issue
involved does not constitute a basis for reopening a case.28 As Dr. Lehman’s medical report is
insufficient to require further merit review of appellant’s claim, OWCP properly denied further
merit review of appellant’s claim in its October 18, 2016 decision.

24

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 081569 (issued December 9, 2008).
25

20 C.F.R. § 10.607(a).

26

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

27

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

28

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

On December 6, 2016 appellant again requested reconsideration. In a decision dated
December 9, 2016, OWCP again denied further merit review of appellant’s case because the
evidence submitted on reconsideration neither raised a substantive legal question nor constituted
new and relevant pertinent evidence sufficient to warrant merit review.
The Board finds that OWCP appropriately denied further merit review as appellant did
not submit any evidence with her reconsideration request to warrant merit review under 5 U.S.C.
§ 8128(a). In support of her reconsideration request, appellant submitted a November 16, 2016
report by Dr. Corsetti, who described the July 17, 2014 incident at work and noted the diagnosis
of left shoulder rotator cuff tear. Dr. Corsetti opined that appellant’s diagnosed left shoulder
condition was consistent with the July 17, 2014 fall at work on the outstretched arm. The Board
notes that Dr. Corsetti had provided similar affirmative statements regarding causal relationship
in his February 29 and April 11, 2016 medical reports. The Board has found that the submission
of evidence which repeats or duplicates evidence already in the case record does not constitute a
basis for reopening a case.29 Accordingly, OWCP properly denied further merit review of
appellant’s case.
Appellant did not submit any evidence along with her request for reconsideration to show
that OWCP erroneously applied or interpreted a specific point of law, or advances a relevant
legal argument not previously considered by OWCP. Appellant also did not submit new and
relevant pertinent evidence in support of her request for reconsideration. Because she did not
meet any of the necessary requirements, the Board finds that OWCP properly refused to reopen
her case for further consideration of the merits of her claim under 5 U.S.C. § 8128.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury causally related to the accepted July 17, 2014 employment incident. The Board also finds
that OWCP properly denied reconsideration of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).

29

E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

10

ORDER
IT IS HEREBY ORDERED THAT the August 4, 2016 merit decision and October 18
and December 9, 2016 nonmerit decisions of the Office of Workers’ Compensation Programs are
affirmed.
Issued: September 13, 2017
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS BASE, COMMUNICATION
STRATEGY (COMSTRAT) & OPERATIONS,
Quantico, VA, Employer
__________________________________________

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

Docket No. 21-1244
Issued: March 25, 2022

Case Submitted on the Record

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

JURISDICTION
On August 17, 2021 appellant, through counsel, filed a timely appeal from a June 4, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

1

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

The Board notes that, following the June 4, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a back condition
causally related to the accepted January 15, 2019 employment incident.
FACTUAL HISTORY
This case has previously been on appeal before the Board. 4 The facts, as set forth in the
Board’s prior order, are incorporated herein by reference. The relevant facts are as follows.
On January 18, 2019 appellant, then a 64-year-old head of training support, filed a
traumatic injury claim (Form CA-1) alleging that on January 15, 2019 he hit his head and injured
his back when he slipped on ice walking from a road to a walkway while in the performance of
duty. He stopped work on January 15, 2019.5
Dr. Vishal Bindal, a Board-certified neuroradiologist, examined appellant on January 15,
2019 and noted his history of injury. He diagnosed traumatic pain, as well as a history of chronic
back pain. Dr. Bindal reviewed x-rays and indicated no acute lumbar spine findings.
In a January 31, 2019 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence from him and provided a
questionnaire for his completion. OWCP provided 30 days for a response.
In January 18 and 30, 2019 notes, Dr. Vipul Mangal, a Board-certified pain medicine
specialist, described appellant’s January 15, 2019 fall and diagnosed lumbar radiculopathy.
Dr. Yolanda Reid, a Board-certified family practitioner, examined appellant on
February 26, 2019 and diagnosed lumbar disc herniation and lumbar facet arthropathy. She noted
that appellant had experienced a fall one month ago and suffered moderate-to-severe back pain.
Dr. Reid found muscle weakness in the right lower extremity.
By decision dated March 19, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he failed to submit medical evidence establishing a causal relationship between his
diagnosed conditions and his accepted January 15, 2019 employment incident.

3

5 U.S.C. § 8101 et seq.

4

Order Remanding Case, Docket No. 19-1929 (issued August 3, 2020).

5

The record reflects that appellant has a prior traumatic injury claim involving a back injury. On October 5, 2015
appellant, then a 61-year-old audio visual specialist, filed a traumatic injury claim (Form CA-1) alleging that on
September 4, 2015 he sustained lumbar back pain, muscle strain, hypertension, and a contusion after he fell on office
steps and slipped onto his back while in the performance of duty. He did not stop work. OWCP assigned OWCP File
No. xxxxxx897. It administratively combined the files for OWCP File Nos. xxxxxx897 and xxxxxx142 designating
the latter as the master file.

2

On March 26, 2019 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
In additional February 26, 2019 treatment notes, Dr. Reid described appellant’s history of
back pain beginning one month earlier and noted his fall on January 15, 2019. She noted that he
had a spinal stimulator for previously diagnosed lumbar disc herniation and facet disease. Dr. Reid
diagnosed lumbar disc herniation with myelopathy status post a blunt injury with a fall on ice. She
examined appellant on March 27, 2019 due to musculoskeletal pain following a fall at work and
diagnosed herniated lumbar intervertebral disc.
On March 12, 2019 appellant underwent a lumbar spine magnetic resonance imaging
(MRI) scan, which demonstrated a mild disc bulge at L4-5 with probable small superimposed
broad-based central protrusion and severe facet arthropathy.
On April 2, 2019 Dr. Thomas Raley, a Board-certified orthopedic surgeon, examined
appellant due to chronic low back pain with intermittent radiation to his lower extremities. He
noted the January 15, 2019 fall at work and findings on the March 12, 2019 MRI scan of mild disc
bulge at L4-S1with spinal nerve root compression or foraminal stenosis. Dr. Raley diagnosed
chronic pain syndrome and lumbar radiculopathy.
In an April 5, 2019 note, Dr. Reid diagnosed lumbar disc displacement and chronic pain.
She described an injury where appellant fell at work in January 2019.
On April 16, 2019 Dr. Teresa M. Kerge, a Board-certified physiatrist, examined appellant
due to back pain and noted that his condition was injury -related as he slipped and fell on ice at
work. She reviewed his March 12, 2019 MRI scan and diagnosed sacroiliitis.
By decision dated June 3, 2019, OWCP’s hearing representative affirmed the March 19,
2019 OWCP decision. Appellant appealed to the Board and in its August 3, 2020 order,6 the Board
set aside the June 3, 2019 decision and remanded the case, directing OWCP to combine appellant’s
claims under File Nos. xxxxxx142 and xxxxxx897 and issue a de novo decision.
In an April 1, 2019 note, Dr. Raley reported that appellant slipped on ice at work on
December 15, 2018 and had experienced pain since that fall. He diagnosed radiculopathy lumbar
region, spondylosis without myelopathy or radiculopathy lumbar region, and low back pain.
Dr. Raley noted that appellant had experienced low back pain and bilateral lowe r extremity pain
since his fall. On April 17, 2019 he diagnosed chronic pain syndrome, lumbar spondylosis without
myelopathy or radiculopathy, lumbar radiculopathy, and low back pain. Dr. Raley again noted
appellant’s fall at work on January 15, 2019. He further noted that appellant fell down a few stairs
at work on September 4, 2015 and landed on his back. Dr. Raley reviewed appellant’s
October 2015 lumbar MRI scan, which demonstrated L4-5 mild disc bulge and mild central canal
stenosis L5-S1 as well as his June 11, 2018 lumbar MRI scan, which demonstrated L4-5 and L5S1 facet hypertrophy and L4-5 degenerative disc disease. He diagnosed chronic pain syndrome

6

Supra note 4.

3

and radiculopathy of the lumbar region. Dr. Raley repeated his findings in notes dated May 15
through August 8, 2019.
On September 6 and October 4, 2019 Dr. Brian Lee, a Board-certified anesthesiologist,
noted appellant’s history of a January 15, 2019 fall on ice at work and reported that lumbar spine
surgery was scheduled for October 7, 2019. He diagnosed chronic pain syndrome, lumbar
spondylosis, lumbar radiculopathy, and low back pain. In a November 1, 2019 note, Dr. Lee
reported that the October 7, 2019 microdiscectomy had reduced appellant’s right leg radiating
pain.
By decision dated November 16, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record had not established that the employment incident occurred as
alleged. Therefore, it concluded that the requirements had not been met to establish an injury as
defined by FECA.
On November 20, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
In notes dated May 9, 2019 through November 4, 2020, Dr. Wahid Baqaie, a Boardcertified orthopedic surgeon, opined that appellant originally injured himself in a 2015 fall and
that he fell again at work on January 15, 2019 resulting in back pain. He diagnosed lumbar
spondylosis, spinal stenosis, degenerative lumbar disc, and lumbar back pain . Dr. Baqaie found
that appellant was status post L5-S1 laminotomy with no evidence of instability.
A hearing was conducted on March 22, 2021, wherein appellant described the January 15,
2019 employment incident and resulting medical treatment.
Following the oral hearing, Dr. Baqaie provided treatment notes dated July 3, 2019 through
February 10, 2021. He reported that appellant’s back symptoms developed suddenly and were
associated with falling on ice at work on January 15, 2019.
By decision dated June 4, 2021, OWCP’s hearing representative affirmed, as modified,
OWCP’s prior decision, finding that appellant had established that the January 15, 2019
employment incident occurred, as alleged, but determined that the medical evidence was
insufficient to establish causal relationship between the diagnosed back conditions and the
accepted January 15, 2019 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 8 that an injury was sustained in the performance of duty, as alleged, and that
7

Supra note 3.

8

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued December 13, 2019);
Joe D. Cameron, 41 ECAB 153 (1989).

4

any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 9 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. 10
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury. 11
The evidence required to establish causal relationship is rationalized medical opinion
evidence.12 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
specific employment incident identified by the employee.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a back condition
causally related to the accepted January 15, 2019 employment incident.
OWCP received treatment notes from Dr. Reid dated February 26 through April 5, 2019 in
which she diagnosed lumbar disc displacement. Dr. Reid found that appellant experienced a blunt
injury when he fall on ice at work on January 15, 2019. On April 16, 2019 Dr. Kerge diagnosed
sacroiliitis and opined that this condition was work related as appellant slipped and fell on ice at
work. Dr. Baqaie provided treatment notes dated July 3, 2019 through February 10, 2021
diagnosing lumbar spondylosis, spinal stenosis, degenerative lumbar disc and reporting that
appellant’s back symptoms developed suddenly and were associated with falling on ice at work on
January 15, 2019.
While Drs. Reid, Kerge, and Baqaie attributed appellant’s diagnosed back conditions to his
accepted January 15, 2019 employment incident, neither physician provided medical reasoning

9

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
10

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
11

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
12

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
13

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

explaining how or why the fall resulted in his diagnosed conditions. These reports are, therefore,
of limited probative value and insufficient to establish causal relationship. 14
In January 18 and 30, 2019 notes, Dr. Mangal described appellant’s January 15, 2019 fall
and diagnosed lumbar radiculopathy. Dr. Raley submitted a series of notes from April 1 through
August 8, 2019 in which he recounted the January 15, 2019 fall at work and diagnosed lumbar
radiculopathy. Similarly, in notes dated September 6 and October 4, 2019, Dr. Lee noted his
history of a January 15, 2019 fall on ice at work and diagnosed chronic pain synd rome, lumbar
spondylosis, lumbar radiculopathy. None of these physicians provided an opinion on the cause of
appellant’s condition. The Board has long held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value. 15 Therefore,
these reports are insufficient to establish appellant’s claim.
On January 15, 2019 Dr. Bindal noted appellant’s history of injury and diagnosed traumatic
pain as well as a history of chronic back pain. In a February 26, 2019 note, Dr. Reid found
appellant experienced back pain for one month following a fall. The Board has held that pain is a
description of a symptom, not a clear diagnosis of a medical condition.16 A medical report lacking
a firm diagnosis is of no probative value. 17 These reports are, therefore, also insufficient to
establish a diagnosed medical condition causally related to the accepted employment incident.
Appellant submitted an MRI scan dated March 12, 2019. The Board has held that
diagnostic tests, standing alone, lack probative value on the issue of causal relationship as they do
not address the relationship between the accepted employment factors and a diagnosed condition. 18
For this reason, the MRI scan is insufficient to meet appellant’s burden of proof.
As there is no medical evidence of record establishing that appellant’s diagnosed back
conditions were causally related to the accepted employment incident, the Board finds that
appellant has not met his burden of proof to establish a diagnosed medical condition causally
related to the accepted January 15, 2019 employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

14

J.N., Docket No. 21-0606 (issued November 23, 2021); T.W., Docket No. 20-0767 (issued January 13, 2021);
see H.A., Docket No. 18-1466 (issued August 23, 2019); L.R., Docket No. 16-0736 (issued September 2, 2016).
15

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

16

See E.S., Docket No. 21-0189 (issued November 16, 2021); C.S., Docket No. 20-1354 (issued January 29, 2021);
D.R., Docket No. 18-1408 (issued March 1, 2019); D.A., Docket No. 18-0783 (issued November 8, 2018).
17

L.T., Docket No. 20-0582 (issued November 15, 2021); E.S.; C.S., id.; J.P., Docket No. 20-0381 (issued July 28,
2020); R.L., Docket No. 20-0284 (issued June 30, 2020).
18

See W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a back condition
causally related to the accepted January 15, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 10-1672
Issued: June 6, 2011

Case Submitted on the Record

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

JURISDICTION
On June 4, 2010 appellant filed a timely appeal from the March 11, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his request
for reconsideration as untimely. He also timely appealed OWCP’s April 19, 2010 merit decision
denying authorization for physical therapy. Pursuant to the Federal Employees’ Compensation
Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review these
decisions.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s February 26, 2010
request for reconsideration; and (2) whether OWCP properly denied authorization for physical
therapy.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In a prior appeal,2 the Board noted that appellant, a mail handler, sustained an injury in
the performance of duty on May 27, 1987 when he pulled a tub and felt a sharp pain in the left
side of his back. OWCP accepted his claim for low back strain, chronic pain syndrome and
aggravation of arachnoiditis radiating into the lower extremities.3
Appellant filed a claim alleging that his cervical and lumbar stenosis with radiculopathy
was a result of his federal employment. OWCP accepted this claim for aggravation of cervical
and lumbar stenosis. It approved an anterior cervical discectomy and fusion. OWCP also
approved a decompressive laminectomy at L3-5.4
Appellant claimed a recurrence of disability from April 26 to June 16, 2002. In decisions
dated July 3, 2002, January 10, March 26 and October 14, 2003 and March 31, 2004, OWCP
reviewed the merits of appellant’s recurrence claim and found that the submitted medical
evidence did not establish disability causally related to the accepted conditions.5 OWCP’s
March 31, 2004 decision remains the most recent merit decision on appellant’s recurrence claim.
In another appeal,6 the Board noted that in 1992 OWCP issued a schedule award for a six
percent impairment of each lower extremity. In 1999, OWCP issued a schedule award for a 41
percent impairment of the left upper extremity. Appellant filed a claim for an increased schedule
award, which OWCP denied after merit reviews on July 30 and October 14, 2003, March 31,
2004 and March 30, 2005. On July 20, 2006 the Board found that he had not met his burden of
proof to establish that he had more than a 6 percent impairment of either lower extremity or more
than a 41 percent impairment of his left upper extremity. The Board’s July 20, 2006 decision
remains the most recent merit decision on appellant’s claim for an increased schedule award.
The facts of this case as set out in prior Board decisions are hereby incorporated by reference.
On February 26, 2010 appellant requested reconsideration of OWCP’s September 17,
2009 nonmerit decision denying an untimely request for reconsideration.7 He made numerous
complaints about the way OWCP handled his claim. One of appellant’s main arguments, well
described in his addendum, was that the statement of accepted facts was incorrect, not just in
identifying him as a distribution clerk, but in showing injuries that occurred prior to his postal

2

Docket No. 07-2042 (issued June 3, 2008).

3

OWCP File No. xxxxxx584.

4

OWCP File No. xxxxxx451. OWCP combined these cases under File No. xxxxxx584.

5

In his January 10, 2003 decision, OWCP hearing representative found that the medical evidence supported that
appellant was capable of working in his permanent rehabilitation job for the period claimed.
6

Docket No. 05-1125 (issued July 20, 2006).

7

The only appeal right attached to OWCP’s September 17, 2009 nonmerit decision was the right to appeal to the
Board within 180 days. Appellant had no right to request reconsideration of that decision.

2

employment.8 He felt that this was misleading, as OWCP did not instruct the physician that prior
injuries were not to be factored into his decision. This, in turn, deceived the physician into
writing a report that favored the agency. Appellant further argued that the issuance of an
amended statement of accepted facts was an acknowledgement of error in the previous
statements dating back to 2002 and therefore was conclusive proof of error in all decisions from
April 26, 2002 to October 19, 2009. He alleged that the Board based its June 3, 2008 decision9
on an incorrect statement of accepted facts and therefore needed to revisit its decision to address
the errors.10
Appellant objected to OWCP’s statement that his claim was not accepted for hip pain, as
the graft for his cervical surgery was harvested from his hip. He noted that OWCP’s
September 17, 2009 reconsideration decision erroneously stated that he underwent surgery in
March 1981. Appellant stated that it was March 2000. He argued that OWCP did not request a
supplemental report from any treating physician, while the rules governing the adjudication of
claims stated that the claims examiner “must always” write a treating physician for a
supplemental report if his or her report lacks needed detail or opinion. Appellant argued that the
rejected evidence was positive, precise and explicit and manifested on its face that OWCP
committed errors: “[Appellant] has concern over the correctness of the agency decision.” He
added that OWCP’s failure to request a supplemental report was a basis for reversal of all
decisions dating back to 2002.
Appellant argued that OWCP ignored his request for a copy of the statement of accepted
facts prior to an OWCP referral examination in June 2003, adding that OWCP’s response that he
did not request a copy was nothing but an excuse to further obstruct his claim. He directed
OWCP’s attention to pages 364, 367 and 397 of the record and argued that his so-called limitedduty job required a weight scale, which was not supplied until 2003, almost 14 years after he was
assigned to limited duty, which was a direct violation of his medical restrictions and which in
turn was a contributing factor to his recurrence of disability from April 26 through
June 16, 2002. Appellant added: “Once the claims examiner take the time to read the reference
document she/he will see the relationship to above reference injury dates.”
Appellant blamed OWCP for his missing statutory deadlines, as he could not find a
Board-certified physician who would take on a patient with an OWCP injury claim. He argued
that OWCP had accepted a permanent aggravation of a degenerative disease, which by definition
will worsen over time and cause disability. Appellant argued that diagnostic testing in June 2009
showed a bulging disc and multiple tears and should be examined by an OWCP medical adviser.
He spent a good deal of time repeating many of his arguments and demanding that OWCP
answer numerous questions to his satisfaction, such as: “how can claims examiners accept and
8

At one point, appellant stated that the reason for his request “is based on incorrect SOAFs that misled all OWCP
contract physicians that claimant was mandated to undergo an examination dating back to 2000.”
9

Docket No. 07-2042 (issued June 3, 2008) (without reviewing the merits of appellant’s case, the Board found
that OWCP properly denied his May 23, 2007 request for reconsideration, as it was untimely and failed to establish
clear evidence of error).
10

Appellant had 30 days to file a petition for reconsideration with the Board if he felt the Board’s decision
contained any error of fact or law. 20 C.F.R. § 501.7.

3

acknowledge that claimant has residuals from the accepted injury/disease and then state that
claimant medical evidence is insufficient in all decisions from 2002 to September 2009?”
Appellant compared his cervical and thoracic spine motion to normal ranges of motion. He
asked why OWCP did not inform its referral physician about the permanent aggravation, which
the referral physician ruled out and why OWCP did not request a supplemental report.
Appellant further argued that Dr. Cooper did not use the Combined Values Chart in his
October 27, 2004 report. He argued that OWCP’s medical adviser found a 26 percent left upper
extremity impairment, yet the claims examiner did not accept the calculation.
In a decision dated March 11, 2010, OWCP denied appellant’s February 26, 2010 request
for reconsideration. It found that his request was untimely and did not present clear evidence of
error.
On or about February 11, 2010 OWCP received a request for physical therapy to treat
bilateral low back and hip pain. The request indicated that the therapy was not related to
postoperative treatment. On February 22, 2010 OWCP wrote to the physician for a definitive
diagnosis. Noting that it had not accepted appellant’s claim for a hip condition, OWCP asked for
additional information, including the following: “Please submit a report explaining the necessity
of hip treatment as it relates to the accepted work injury.”
In a decision dated April 19, 2010, OWCP denied authorization for the requested
physical therapy. OWCP explained that appellant’s physician did not respond to its request for
additional information.
On appeal, appellant submitted a brief of more than 80 pages largely repeating the
arguments he raised in his February 26, 2010 request for reconsideration. He alleges
fundamental errors in all previous OWCP decisions from 2002 through 2010. Appellant
requested that the Board review and issue a de novo decision on all previous OWCP decisions.
He stated that OWCP would clear up everything by scheduling a second-opinion evaluation with
a correct statement of accepted facts. Appellant attached a May 14, 2008 medical report and
diagnostic tests from December 2006.
LEGAL PRECEDENT -- ISSUE 1
FECA section 8128(a) vests OWCP with discretionary authority to determine whether it
will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”11
11

5 U.S.C. § 8128(a).

4

OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be sent within one year of the date of OWCP decision for
which review is sought. OWCP will consider an untimely application only if the application
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The
application must establish, on its face, that such decision was erroneous.12
The term “clear evidence of error” is intended to represent a difficult standard.13 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.14
ANALYSIS -- ISSUE 1
The Board may not, as appellant requests, review and issue a de novo decision on all
previous OWCP decisions as it lacks the jurisdiction or legal authority to do so. The Board has
jurisdiction to review only those final decisions of OWCP issued within 180 days prior to the
filing of the appeal.15 Appellant filed the present appeal on June 4, 2010. The only final
decisions of OWCP issued within the prior 180 days were the March 11, 2010 nonmerit decision
denying reconsideration and the April 19, 2010 merit decision denying authorization for physical
therapy. So the only issues that are properly before this Board are limited. First, the Board will
review whether OWCP properly denied appellant’s February 26, 2010 request for
reconsideration. The Board will then review whether OWCP properly denied authorization for
physical therapy. The Board has no jurisdiction to review the merits of appellant’s recurrence
claim or his claim for an increased schedule award.
The Board finds that appellant’s February 26, 2010 request for reconsideration is
untimely. The most recent merit decision on his recurrence claim was OWCP’s March 21, 2004
decision. Appellant had one year or until March 21, 2005, to request reconsideration of his claim
that he sustained a recurrence of disability from April 26 to June 16, 2002. The most recent
merit decision on appellant’s claim for an increased schedule award was the Board’s July 20,
2006 decision. Appellant had one year or until July 20, 2007, to request reconsideration of his
claim that he had more than 6 percent impairment of each lower extremity or more than
41 percent impairment of his left upper extremity.16
Appellant’s February 26, 2010 request for reconsideration is untimely on both counts by
a measure of years. For this reason, OWCP will review the merits of his case only if his request
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision.
12

20 C.F.R. § 10.607.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004).

14

Id., Chapter 2.1602.3.d(1).

15

20 C.F.R. § 501.3.

16

Federal (FECA) Procedure Manual, supra note 13 at Chapter 2.1602.3.b(1).

5

Clear evidence of error is intended to represent a difficult standard. The request must show on
its face that the most recent merit decision was erroneous. The error alleged cannot be trivial or
immaterial. It must be significant and it must bear directly on the particular issue decided.
Moreover, the request must make the error abundantly clear to the adjudicator, such as a
mathematical miscalculation in a schedule award. It cannot be a matter of reasonable opinion or
judgment or interpretation. The error cannot be speculative or possible or even probable. It must
be definite and significant to the grounds upon which OWCP decided the issue. The purpose of
such a difficult standard is one of limitations, to bring an effective end to matters that have been
adjudicated.
OWCP denied wage-loss compensation from April 26 to June 16, 2002 on the grounds
that appellant failed to satisfy his burden of proof to establish that he suffered a recurrence of
total disability. Indeed, it appeared that the medical opinion evidence supported that he was
capable of working his permanent rehabilitation job for the period claimed. OWCP decided the
matter based on the probative value of the medical opinion evidence submitted. Evaluating the
probative value of the medical evidence is a matter of adjudicatory judgment. Appellant may
disagree with OWCP’s assessment, but if OWCP found that, the weight of the medical opinion
evidence did not support his claim for benefits, his opinion to the contrary will not show clear
evidence of error nor will subsequent medical opinion evidence that could create a conflict on
the issue.
Appellant makes numerous arguments about process, about how OWCP handled his
claim. One of the themes that run through his request is that OWCP provided physicians with an
incorrect statement of accepted facts. Appellant points to two errors: the misidentification of his
early position and his history of injury prior to federal employment. The Board has reviewed
various statements of accepted facts and it does appear that OWCP misidentified appellant as a
distribution clerk prior to October 1991. Appellant identified his occupation as a mail handler on
his initial claim form. An amended statement of accepted facts showed that he worked as a mail
handler since 1981.
Although this is an error, not every error will meet the difficult standard that appellant
must meet to obtain a merit review of his case. Although the difference in the two positions is
apparent, appellant has not shown how the misidentification led directly to the denial of his claim
that he sustained a recurrence of disability from April 26 to June 16, 2002 or to the denial of his
claim for an increased schedule award. The medical opinion evidence upon which OWCP relied
to deny those claims did not depend on the title of his position at the time of injury. The early
statements of accepted facts correctly described the mechanisms of injury, what appellant was
doing when he sustained a traumatic back injury in 1987 and an occupational back injury
in 1996. The title of his position in 1987 was immaterial to the issues decided and does not show
clear evidence of error in OWCP’s most recent merit decisions.
Prior medical history is an optional element in the statement of accepted facts. It may be
included and in occupational disease claims should be included.17 In the case of a schedule
award, all medical conditions or impairments to the scheduled member should be listed and the
17

Federal (FECA) Procedure Manual, supra note 13 at Chapter 2.809.6.

6

instructions to the medical examiner should state that all impairments (preexisting,
nonemployment related and subsequently developed impairments) must be considered in
calculating the award.18 The Board finds no error in describing injuries that occurred prior to
appellant’s federal employment.
Another theme that runs through appellant’s request is the complaint that OWCP did not
request a supplemental report from any treating physician and that this was a violation of OWCP
procedures, which stated that the claims examiner “must always” write for a supplemental report.
This is a mischaracterization of the applicable procedure. The procedure actually stated:
“The quality of attending physicians’ reports will vary greatly. Sometimes reports
are lacking in detail because the physician is unaware of the type of information
required to meet our needs in a given case. If reports from the claimant’s
physician lack needed details and opinion, the [claims examiner] should always
write back to the [physician], clearly state what is needed and request a
supplemental report.”19
The wording “should always” is not mandatory; it is strongly suggestive. Moreover, the
purpose of the procedure was to ensure that the treating physician understands the type of
information required. If OWCP has already sent appellant or the physician a development letter
outlining what the physician should address20 and the physician’s response lacks needed details
and opinion, OWCP need not continue to notify the physician and requesting additional reports
until the physician finally provides the information required. OWCP may instead issue a final
decision explaining the deficiencies so that appellant may obtain additional evidence addressing
those deficiencies. Appellant must keep in mind that he carries the ultimate burden of proof to
submit the evidence necessary to establish his entitlement to benefits.
The Board finds that appellant has not shown clear evidence of error in this matter. The
procedure did not state what appellant claimed it stated, he did not show the absence of a
development letter and he did not prove that a supplemental report would have changed the
outcome of the merit decisions in question.
Appellant argued that OWCP ignored his request for a copy of the statement of accepted
facts prior to an OWCP referral examination in June 2003. The Board cannot find such a
request. The record does contain a letter dated June 10, 2003 and received by OWCP on July 16,
2003 regarding an outdated statement of accepted facts sent to the physician in question. The
letter was clearly written after the June 20, 2003 examination: it refers to the third paragraph on
page three of the physician’s June 23, 2003 report. Appellant has not further identified his
preexamination request for the statement of accepted facts and, the Board finds, has not shown
clear evidence of error in this matter.
18

Id. at Chapter 2.809.4.b(1).

19

Id. at Chapter 2.810.5(b). In 2009, OWCP clarified this language by stating that to “can.”

20

See id. at Chapter 2.800.2.g (once a claimant has established a prima facie claim, OWCP has the responsibility
to take the next step, either of notifying the claimant what additional evidence is needed to fully establish his claim,
or of developing evidence in order to reach a decision).

7

Searching for the alleged request for a copy of the statement of accepted facts, the Board
noted the employing establishment’s May 20, 2003 letter to appellant reiterating that there were
many scales available throughout the Indianapolis facilities and that if a parcel appeared too
large or when it appeared heavy when he attempted to move it or if the postage was of a great
amount, he could have a coworker without a weight restriction lift the parcel or he could ask a
supervisor to weigh the parcel. This sheds a different light on appellant’s complaint that he was
not supplied a weight scale until 2003, which he claimed was a direct violation of his medical
restrictions. In the final analysis, whether this was a contributing factor to his recurrence of
disability from April 26 to June 16, 2002 was a medical question to be determined by the
probative medical opinion evidence. The Board finds that appellant has not shown clear
evidence of error in this matter.
It may be that a permanent aggravation of a degenerative disease will worsen over time
and cause disability. It is not clear from the record that OWCP accepted a “permanent”
aggravation. Regardless, a permanent aggravation does not necessarily mean that appellant was
totally disabled for work from April 26 to June 16, 2002 as a result of his accepted employment
injury. That was a medical issue. Such arguments cannot supply the medical rationale that must
come from a qualified physician. There is no doubt that appellant believes his disability for the
period claimed was causally related to his accepted employment injuries, but his is not the
opinion that decides the matter.
OWCP’s statement that appellant continues to suffer residuals from the accepted injury or
occupational disease does not mean the residuals were such that he was totally disabled for work
during the period claimed, nor does it mean that he is entitled to an increased schedule award.
Those are entirely different issues. Appellant took the time to compare his cervical and thoracic
spine motion to normal ranges of motion, but this is irrelevant. No claimant may receive a
schedule award for impairment to the back or spine.21
Appellant argued that Dr. Cooper did not use the Combined Values Chart in his
October 27, 2004 report, but he did not explain the significance of this observation. The OWCP
medical adviser reviewed the physician’s findings and determined that they indicated a 26
percent total left upper extremity impairment and a 28 percent left lower extremity impairment.
The medical adviser would explain, however, that Dr. Cooper did not document what muscle
groups were weak and did not identify the grade of weakness. He found that there was
insufficient evidence and documentation of appellant’s physical examination: “What is required
is a detailed physical examination on neurological status. Dermatomal sensory distributions,
grades 1-5 muscle testing for nerve root groups. These are not present in the chart at this time.”
The OWCP medical adviser added that the date of maximum medical improvement was
unknown. So the fact that the claims examiner did not accept Dr. Cooper’s findings does not
show clear evidence of error in OWCP’s most recent schedule award decision.
The Board has read the entirety of appellant’s February 26, 2010 request for
reconsideration and the entirety of his even lengthier appellate brief. Although practicalities
prevent a recitation of everything he has argued, the Board has given due consideration to those
21

E.g., Timothy J. McGuire, 34 ECAB 189 (1982).

8

arguments. It is the Board’s finding that appellant’s February 26, 2010 request for
reconsideration fails to establish clear evidence of error in OWCP’s most recent merit decisions.
The standard of review, as the Board has explained, is intended to be difficult to meet. In the
final analysis, appellant’s untimely request simply does not show on its face that OWCP merit
decisions in question are clearly erroneous. Because his untimely request does not meet the
standard for obtaining a merit review of his case, the Board will affirm OWCP’s March 11, 2010
decision to deny that request.22
LEGAL PRECEDENT -- ISSUE 2
FECA section 8103(a) provides that the United States shall furnish to an employee who is
injured while in the performance of duty the services, appliances and supplies prescribed or
recommended by a qualified physician that the Secretary of Labor considers likely to cure, give
relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.23 OWCP must therefore exercise discretion in determining whether the
particular service, appliance or supply is likely to effect the purposes specified in FECA.24 The
only limitation on OWCP’s authority is that of reasonableness.25
ANALYSIS -- ISSUE 2
Appellant objected to OWCP’s statement that his claim was not accepted for hip pain, as
the graft for his cervical surgery was harvested from his hip. OWCP has not accepted his claim
for hip pain, but if a bone graft was harvested from his hip as part of an authorized procedure on
his cervical spine, any resulting injury from that harvesting would be considered a consequential
injury. Disability resulting from surgery or treatment authorized by OWCP is compensable.26
The question before the Board is whether OWCP abused its discretion in denying
Dr. Frick’s request for physical therapy. OWCP wrote to Dr. Frick on February 22, 2010 to
acknowledge his request for physical therapy and to ask for a supplemental report. It asked him
to provide a more definitive diagnosis than “hip pain” and “back pain.” OWCP correctly
explained that it had not accepted a hip condition as part of appellant’s claim, so Dr. Frick should
explain “the necessity of hip treatment as it relates to the accepted work injury.” It is important
to note that OWCP was not denying a relationship between appellant’s hip and his cervical
22

The May 14, 2008 medical report and the December 2006 diagnostic tests that appellant attached to his brief on
appeal were previously submitted to the record, but they do not address the issues decided by OWCP’s most recent
merit decisions. They do not discuss his disability status for the period in question, nor do they discuss the
impairment rating of his lower extremities or his left upper extremity. This evidence does not show clear evidence
of error.
23

5 U.S.C. § 8103(a).

24

See Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority in the administration of
FECA and must exercise that discretion to achieve the objectives of section 8103).
25

Daniel J. Perea, 42 ECAB 214 (1990).

26

Carmen Dickerson, 36 ECAB 409 (1985) (this is so even though the surgery or treatment was not for an
employment-related condition).

9

surgery; it was allowing Dr. Frick an opportunity to explain that relationship. This was a fair
request, as OWCP had to determine whether the requested physical therapy would likely, in the
words of FECA, to cure, give relief, reduce the degree or the period of any disability or aid in
lessening the amount of any monthly compensation.
The problem was that about two months passed and Dr. Frick did not respond. So on
April 19, 2010 OWCP issued a decision denying authorization on the grounds that it received no
response to its request for additional information. The case record confirms that OWCP had
received no response when it issued its decision. Appellant argues on appeal that Dr. Frick
complied with OWCP’s request for additional information to secure authorization for physical
therapy, but the Board notes that Dr. Frick did not respond until April 22, 2010 and OWCP did
not receive that response until April 26, 2010. As this was after OWCP’s April 19, 2010
decision, the Board has no jurisdiction to review that evidence.27
The Board must therefore base its decision on the evidence that was before OWCP when
it issued its April 19, 2010 decision. As OWCP had asked Dr. Frick to provide additional
information necessary to determine whether the requested physical therapy should be authorized
and as OWCP waited a reasonable period of time with no response, the Board finds that OWCP
acted reasonably and within its broad discretion to deny authorization. The Board will therefore
affirm OWCP’s April 19, 2010 merit decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision on denying approve of physical
therapy, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607. For the
purpose of requesting reconsideration by OWCP on the issue of authorization for physical
therapy, Dr. Frick’s April 22, 2010 report would be considered new evidence.
CONCLUSION
The Board finds that OWCP properly denied appellant’s February 26, 2010 request for
reconsideration. It was untimely and failed to show clear evidence of error in OWCP’s most
recent merit decisions. The Board also finds that OWCP properly denied authorization for
physical therapy.

27

The Board’s jurisdiction is limited to reviewing the evidence that was before the OWCP at the time of its final
decision. 20 C.F.R. § 501.2(c)(1).

10

ORDER
IT IS HEREBY ORDERED THAT the April 19 and March 11, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 6, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11