United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Des Moines, IA, Employer
__________________________________________

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

Docket No. 08-486
Issued: June 12, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 6, 2007, denying her claim for an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has established an emotional or physical condition
causally related to compensable work factors.
FACTUAL HISTORY
On December 20, 2006 appellant, then a 54-year-old administrative support clerk, filed
an occupational disease claim (Form CA-2), alleging that she sustained stress, depression and
high blood pressure as a result of federal employment. In a statement received by the Office on
February 8, 2007 she discussed her claim. Appellant stated that she worked in the transcription

unit and had difficulties with a coworker, Diane Devore, who “constantly found fault with my
work. [Ms. Devore] rebuked me frequently in regard to my transcription. She was angry most
of the time.” According to appellant, at least once a week, Ms. Devore would come to her desk
and “shout at me, initially regarding my transcription of documents and later in regard to
documents I uploaded.” She noted that she submitted a March 28, 2005 memorandum to her
supervisor entitled “hostile work environment” regarding the actions of Ms. Devore.1 Following
the letter, appellant indicated the hostility continued, although the coworker did stop cursing and
slamming the telephone. She stated that in June 2005 her position was eliminated and she had to
work in Knoxville, Iowa, as a scanner, then she was returned to prior work site. Appellant
alleged this was in retaliation for reporting a hostile work environment. In addition, she stated
that she applied for other positions at the employing establishment, but was not selected.
Appellant reported that in December 2005 she began working as a clerk in “Release of
Information,” for which she was not adequately trained.
In a statement dated February 14, 2007, a supervisor, Carole Uknes, responded to the
allegations. The supervisor stated that Ms. Devore was assigned to train appellant, and appellant
had difficulty in learning the requirements of the job. Ms. Uknes reported that an investigation
was completed regarding the allegations in the March 28, 2005 memorandum, but the allegations
were not substantiated. According to the supervisor, several employees of the unit were
displaced during a reorganization, and appellant was reassigned to Knoxville. With respect to
hiring, Ms. Uknes indicated that selections were based on interviews and qualifications. The
supervisor also indicated that appellant was trained on release of information and assistance was
always available for difficult issues.
By decision dated April 19, 2007, the Office denied the claim for compensation. The
Office determined that no compensable work factors were established. Appellant requested an
oral hearing before an Office hearing representative, which was held on September 19, 2007.
Appellant submitted evidence indicating she filed an EEO (Equal Employment Opportunity)
complaint on January 22, 2007.
By decision dated November 6, 2007, the Office hearing representative affirmed the
April 19, 2007 decision. The hearing representative found appellant had not established a
compensable work factor.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or adversely
affected by factors of her federal employment.2 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.3 A claimant must also
1

The record contains a copy of the memorandum, in which appellant alleged Ms. Devore was constantly cursing,
slamming phones and finding fault with appellant’s work.
2

Pamela R. Rice, 38 ECAB 838 (1987).

3

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

2

submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.5
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors causing a condition or disability, the Office, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may
not be considered.6 If a claimant does implicate a factor of employment, the Office should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, the Office must base its decision on an analysis of the medical evidence.7
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.8 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.9
ANALYSIS
The initial question presented is whether appellant has alleged and substantiated
compensable work factors. If there are no compensable work factors, appellant cannot establish
an injury in the performance of duty.
4

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

5

Lillian Cutler, 28 ECAB 125 (1976).

6

See Norma L. Blank, 43 ECAB 389-90 (1992).

7

Id.

8

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

9

Margreate Lublin, 44 ECAB 945, 956 (1993).

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Appellant’s allegations essentially involve: (1) the actions of a coworker, Ms. Devore;
and (2) the administrative actions of the employing establishment regarding a reassignment, the
failure to select appellant for other positions, and the training she received for her work in a
release of information office. As to the first allegations, appellant reported that she was subject
to harassment and verbal abuse from her coworker. She stated the coworker yelled at her,
criticized her performance and was constantly cursing. There is, however, no probative evidence
of record sufficient to establish a compensable work factor in this regard.
The allegations are primarily of a general nature, rather than specific incidents. When
appellant did make specific allegations, such as in her March 28, 2005 memorandum when she
referred to the coworker swearing several times on March 23, 2005, the allegations do not rise to
the level of verbal abuse. While the Board has recognized the compensability of verbal abuse in
certain circumstances, this does not imply that every statement uttered in the workplace will give
rise to a compensable work factor.10 Appellant also reported the coworker yelled at her, but the
raising of a voice during the course of a conversation does not itself warrant a finding of verbal
abuse.11 Moreover, the supervisor reported that appellant’s complaints were not substantiated by
an employing establishment investigation. There is no probative evidence of record sufficient to
establish a compensable work factor with respect to the actions of the coworker.
With respect to the allegations regarding administrative actions of the employing
establishment, as noted above, there must be evidence of error or abuse by the employing
establishment. Appellant alleged the actions were in retaliation for submitting the memorandum
in March 2005, but no supporting evidence was submitted. The supervisor explained the actions
of the employing establishment and there is no evidence of error or abuse in the case record
submitted by the Board. It appeared appellant had filed an EEO complaint, but no findings or
other probative evidence was submitted.
The Board notes the hearing representative referred to an allegation of a heavy workload.
To the extent that appellant alleged that she had an emotional reaction to a heavy workload, she
did not provide a detailed allegation or supporting evidence.12 The Board accordingly finds that
appellant has not alleged and substantiated a compensable work factor regarding her claim.
Since appellant has not established a compensable work factor, the Board will not address the
medical evidence.13
CONCLUSION
Appellant did not meet her burden of proof to establish an emotional or physical
condition causally related to compensable work factors.

10

Judy L. Kahn, 53 ECAB 321, 326 (2002).

11

Carolyn S. Philpott, 51 ECAB 175, 179 (1999).

12

See Sherry L. McFall, 51 ECAB 436 (2000).

13

See Margaret S. Krzycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 6 and April 19, 2007 are affirmed.
Issued: June 12, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jersey City, NJ, Employer
__________________________________________

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

Docket No. 09-541
Issued: November 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 15, 2008 appellant, through his representative, filed a timely appeal from
an August 26, 2008 merit decision of the Office of Workers’ Compensation Programs denying
acceptance of his claim for various additional conditions. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that he sustained a head injury, traumatic brain
injury, balance disturbance, cognitive impairment or aggravation of lumbosacral spinal stenosis,
spondylosis and radiculopathy due to his August 27, 2006 employment injury.
On appeal, appellant’s representative contends that medical and wage-loss benefits were
wrongly denied after September 2006 as the June 13, 2008 medical report of Dr. Haodong Song,
a Board-certified psychiatrist and neurologist, established that appellant developed these
conditions as a result of his employment injury.

FACTUAL HISTORY
On August 31, 2006 appellant, then a 56-year-old dock clerk, filed a traumatic injury
claim (Form CA-1) alleging that on August 27, 2006 he fell and hit his face on concrete resulting
in swelling. The employing establishment controverted the claim.
In an August 27, 2006 accident report, appellant’s supervisor stated that appellant was on
his way from transportation to his tour and that the last thing he remembered was approaching
the ground. Appellant blacked out and had no memory regarding the cause of the fall. He
sustained facial injuries and scraped knees and was admitted to the hospital for three to four
days.
On September 5, 2006 the Office notified appellant of the deficiencies in his claim and
requested additional evidence. Appellant submitted a series of chart notes and medical reports
dated August 27 through September 15, 2006 related to his hospitalization and follow-up
treatment for a subdural hematoma and laceration due to a slip and fall.
By decision dated October 5, 2006, the Office denied appellant’s claim on the grounds
that he did not submit sufficient factual evidence describing the August 27, 2006 fall to establish
that the incident occurred as alleged.
On October 11, 2006 appellant submitted a second traumatic injury claim (Form CA-1).
He alleged that on August 27, 2006 he stepped on loose gravel causing him to lose his balance
and fall. Appellant claimed that he injured his left eye, sustained a laceration of his left cheek
and a concussion.
On November 7, 2006 appellant requested an oral hearing before an Office hearing
representative, which took place on February 26, 2007. He testified that his fall on August 27,
2006 occurred after he stepped on a pebble and lost his balance.
In a February 21, 2007 medical report, Dr. Haodong Song, a Board-certified psychiatrist
and neurologist, reported appellant’s complaints of left-sided lower extremity pain after an
August 27, 2006 fall at work when appellant stepped on a loose pebble and lost his balance.
Appellant reported intermittent pain around his left facial wound, tingling sensation and pain in
the left lateral thigh with frequent attacks of dizziness and lightheadedness when standing up
quickly or during the shower. A February 8, 2007 magnetic resonance imaging (MRI) scan
revealed minor degenerative disc and facet changes involving the lower lumbar levels associated
with mild convex left scoliosis, superimposed minimal central annular tearing, left foraminal
ridging at L2-3 and L3-4, moderate to large central and left lateralizing herniated nucleus
pulposus, minor left lateralizing ridging at L5-S1, central stenosis, severe at L4-5 and moderate
to severe at L3-4, and borderline canal dimension at L2-3. Dr. Song opined that appellant’s
lower extremity pain was likely secondary to degenerative disease and disc herniation of the
lumbar spine. He noted that it was unclear whether the left lower extremity weakness was from
a previous stroke or contributed to by the lumbosacral radiculopathy.
By decision dated June 6, 2007, the Office hearing representative reversed the October 5,
2006 decision and accepted appellant’s claim for facial laceration, contusion to the face, scalp

2

and neck and subdural hematoma. He found that appellant was entitled to continuation of pay
for time lost from work from the date of injury through September 6, 2006. However, the
hearing representative noted that the evidence of record did not establish entitlement to medical
or wage-loss benefits thereafter.
By decision dated June 19, 2007, the Office notified appellant that his claim was accepted
for face laceration, contusion of the face, scalp and neck and traumatic subdural hematoma. It
also stated that there was no evidence of record establishing appellant’s entitlement to additional
medical treatment beyond September 15, 2006 or wage-loss benefits after August 27, 2006.
In a May 27, 2008 letter, appellant, through his representative, filed a request for
reconsideration of the June 19, 2007 decision. He requested that the Office continue his wageloss and medical benefits after September 15, 2006.
In a medical report dated June 13, 2008, Dr. Song stated that appellant fell on August 27,
2006 at work. Appellant recalled stepping on loose pebbles, losing his balance and falling. The
fall resulted in a left facial laceration and he was hospitalized. After the left facial wound was
repaired, appellant reported experiencing sharp pain around the wound, but, the pain had since
resolved. He also experienced new tingling and pain in the left lower extremity. Dr. Song noted
a history of stroke in 1995 with residual left-sided hemiparesis. He stated that appellant’s
weakness and memory worsened after the fall and that he had not returned to his functional
baseline and was unable to return to work. Physical examination revealed left-sided hemiparesis,
decreased muscle bulk and increased tone on the left side. Appellant demonstrated paresthesia in
the distribution of the left lateral femorocutaneous nerve and hemiparetic gait. Reflexes were
increased in the left side and plantar reflex showed toes up going on the left. Dr. Song diagnosed
an old stroke with residual persistent left hemiparesis. He stated that the August 27, 2006 fall
resulted in facial laceration and possible subdural hematoma. Dr. Song opined that appellant’s
motor function worsened after the fall and he also developed new symptoms consistent with
postconcussion syndrome. There was also a suggestion of worsening lumbosacral radiculopathy
after the fall. Dr. Song opined that appellant was likely to be more vulnerable to subsequent
complications secondary to the fall. He diagnosed persistent gait disturbance and balance
difficulty with a likely multifactorial etiology, including increased tone due to upper motor
neuron dysfunction secondary to old stroke and a brain injury from the fall, lumbosacral spinal
stenosis and radiculopathy. Dr. Song also assessed mild-to-moderate cognitive impairment,
likely related to stroke and head injury. He stated that appellant’s lumbosacral spinal stenosis,
spondylosis and radiculopathy worsened after the fall.
In a June 13, 2008 letter, appellant, through his representative, requested that the Office
accept the conditions of head injury, brain injury, traumatic brain injury, balance disturbance and
cognitive impairment, as well as aggravation of lumbosacral spinal stenosis, spondylosis and
radiculopathy.
By decision dated August 26, 2008, the Office denied modification of the prior decision.
It found that appellant did not submit sufficient medical evidence to establish that the August 27,
2006 employment injury caused or contributed to the conditions diagnosed by Dr. Song.

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LEGAL PRECEDENT
The claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.1 Causal relationship is a
medical issue and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence which includes a physician’s rationalized opinion on whether there is a causal
relationship between the employee’s diagnosed condition and the compensable employment
factors. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.2
The Board has held that the subsequent progression of an employment-related condition
“remains compensable so long as the worsening is not shown to have been produced by an
independent nonindustrial cause.”3 If a member weakened by an employment injury contributes
to a later fall or other injury, the subsequent injury will be compensable as a consequential
injury, if the further medical complication flows from the compensable injury, i.e., “so long as it
is clear that the real operative factor is the progression of the compensable injury, with an
exertion that in itself would not be unreasonable in the circumstances.”4
ANALYSIS
The Office accepted that appellant sustained facial laceration, contusion of the face, scalp
and neck and traumatic subdural hematoma as a result of the August 27, 2006 employmentrelated fall. It denied medical benefits and wage-loss benefits after September 15, 2006.
Appellant requested reconsideration and also requested that his claim be expanded to include
head injury, brain injury, traumatic brain injury, balance disturbance, cognitive impairment and
aggravation of lumbosacral spinal stenosis, spondylosis and radiculopathy. In an August 26,
2008 decision, the Office denied expansion of the claim finding that appellant did not establish
that the additional conditions were causally related to the August 27, 2006 employment injury.
The issue is whether appellant established that he sustained the additional conditions due to the
August 27, 2006 fall. The Board finds that he has not met his burden of proof.
Appellant submitted two medical reports from Dr. Song dated February 21, 2007 and
June 13, 2008. He noted appellant’s complaints of left-sided lower extremity pain and reviewed
a February 2, 2007 MRI scan revealing minor degenerative disc and facet changes involving the
lower lumbar levels, superimposed minimal central annular tearing, left forminal ridging in the
1

Katherine J. Friday, 47 ECAB 591, 594 (1996).

2

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
3
4

Raymond A. Nester, 50 ECAB 173, 175 (1998); Robert W. Meeson, 44 ECAB 834, 839 (1993).
S.M., 58 ECAB ___ (Docket No. 06-536, issued November 24, 2006); Raymond A. Nester, supra note 3.

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lumbar spine and central stenosis. Dr. Song opined that the lower extremity pain was likely due
to degenerative disc disease and disc herniation of the lumbar spine. He advised that it was
unclear whether the left lower extremity weakness was due to appellant’s previous stroke or the
lumbosacral radiculopathy. The Board finds this report insufficient to establish that appellant
sustained any additional conditions due to or as a consequence of his employment injury.
Although Dr. Song addressed appellant’s spinal condition, he did not render an opinion as to the
cause of the condition or specifically relate any diagnosed spinal condition to the August 26,
2007 fall.5 As to appellant’s lower extremity weakness and pain, Dr. Song did not provide any
opinion relating any diagnosed condition to the work-related injury. While he reported
appellant’s complaints of lower extremity pain following the August 27, 2006 fall, this is not
sufficient to establish causation as there is no medical rationale explaining how the employment
injury caused a diagnosed lower extremity condition.6
On June 13, 2008 Dr. Song stated that appellant fell on August 27, 2006 at work after
losing his balance on gravel, resulting in a left facial laceration and possible subdural hematoma.
Appellant also sustained a worsening of his motor function after the fall, as well as new
symptoms consistent with postconcussion syndrome and a worsening of lumbosacral
radiculopathy. Dr. Song diagnosed persistent gait disturbance and balance difficulty with a
likely multifactorial etiology, including increased tone secondary to an old stroke and a brain
injury. He assessed mild-to-moderate cognitive impairment, likely related to stroke and head
injury.
Dr. Song stated that appellant’s lumbosacral spinal stenosis, spondylosis and
radiculopathy were worsened after the fall.
The Board finds that this medical report also fails to establish that appellant sustained any
additional conditions as a result of the August 27, 2006 employment injury. Dr. Song opined
that, after the fall, appellant sustained a worsening of his left motor function, lumbosacral
radiculopathy, lumbosacral spinal stenosis and spondylosis. The fact that appellant experienced
these conditions after he fell is insufficient to establish causation as Dr. Song did not adequately
explain how the fall caused or contributed to a worsening of appellant’s spinal conditions or left
motor function.7 These conditions are not established as employment related.8 The medical
report does not establish that appellant sustained persistent gait disturbance, balance difficulty
and cognitive impairment as a result of the August 27, 2006 employment injury. Dr. Song
opined that these conditions had a likely multifactorial etiology including an old stroke and brain
injury. This opinion is equivocal and lacks sufficient medical rationale.9 Dr. Song did not
provide a well-reasoned explanation as to how the fall or any resulting brain injury actually

5

Medical reports that do not address causation are of diminished probative value. Donald T. Pippin, 54 ECAB
631 (2003).
6

Without a rationalized opinion on causal relationship, the mere fact that an injury manifested itself at work does
not raise an inference of causal relationship. Robert Lombardo, 40 ECAB 1038 (1989).
7

Id.

8

See Lucrecia M. Nielsen, 42 ECAB 583 (1991).

9

See D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).

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caused or contributed to the persistent gait disturbance, balance difficulty or cognitive
impairment.10
The Board finds that the medical evidence is insufficient to support appellant’s request
for an expanded claim to include additional neurological and spinal conditions.
CONCLUSION
The Board finds that appellant did not establish that he sustained a head injury, traumatic
brain injury, balance disturbance, cognitive impairment, aggravation of lumbosacral stenosis,
spondylosis or radiculopathy due to his August 27, 2006 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 26, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

See Victor J. Woodham, supra note 2.

6


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hillsboro, OH, Employer
_________________________________________

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

Docket No. 11-2081
Issued: May 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 23, 2011 appellant, through his attorney, filed a timely appeal of an
August 15, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) which
denied his request for reconsideration without conducting a merit review. Because more than
one year elapsed between the most recent merit decision dated July 5, 2007 and the filing of this
appeal, the Board lacks jurisdiction to review the merits of his claim pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2

1
2

5 U.S.C. §§ 8101-8193.

For final adverse decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to the
Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19, 2008, a
claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been on appeal before the Board.3 In a July 9, 2010 decision,
the Board found that the evidence submitted by appellant on reconsideration was insufficient to
establish clear evidence of error on the part of OWCP such that it abused its discretion in
denying merit review. The Board found that OWCP did not abuse its discretion in denying
further merit review. The facts and history contained in the prior appeal are incorporated by
reference.
On July 8, 2011 appellant’s representative requested reconsideration and submitted
additional medical evidence. He alleged that the new medical evidence established that the work
injury of December 5, 2005 caused both appellant’s impingement syndrome and biceps rupture.
Counsel argued that the prior decision was contrary to law and the claim should be approved.
In an August 20, 2010 report, Dr. Martin Fritzhand, an occupational physician and
Board-certified urologist, noted that in his September 24, 2008 report, he attempted to explain
the causal relationship between the well-documented injury appellant sustained to the right upper
extremity and the subsequent findings of a ruptured right biceps and right shoulder impingement.
Dr. Fritzhand, indicated that the use of the word “could” was “unfortunate” as it was “more
accurate to state that within reasonable medical probability” appellant’s “December 5, 2005
[employment] injury certainly caused both the impingement syndrome and the biceps rupture.”
In a decision dated August 15, 2011, OWCP denied appellant’s request for
reconsideration for the reason that it was not timely filed and failed to present clear evidence of
error.
LEGAL PRECEDENT
Section 8128(a) of FECA 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 anytime 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.”4
3

Docket No. 10-33 (issued July 9, 2010).

4

5 U.S.C. § 8128(a).

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OWCP’s imposition of a one-year time limitation within which to file an application for
review as part of the requirements for obtaining a merit review does not constitute an abuse of
discretionary authority granted OWCP under section 8128(a).5 This section does not mandate
that OWCP review a final decision simply upon request by a claimant.
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a). Thus, section 10.607(a) of the implementing regulations
provide that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought.6
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish 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.8 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.9
ANALYSIS
In its August 15, 2011 decision, OWCP properly determined that appellant failed to file a
timely application for review. It rendered its most recent merit decision on July 5, 2007.
Counsel requested reconsideration on July 8, 2011, more than one year after the July 5, 2007
merit decision and was, therefore, untimely.

5

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

6

20 C.F.R. § 10.607(a).

7

Id. at § 10.607(b).

8

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

9

Id.

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In accordance with internal guidelines and with Board precedent, OWCP properly
proceeded to perform a limited review to determine whether appellant’s application for review
showed clear evidence of error, which would warrant reopening his case for merit review under
section 8128(a) of FECA, notwithstanding the untimeliness of his application. It reviewed the
evidence submitted by him in support of his application for review, but found that it did not
clearly show that OWCP’s most recent merit decision was in error.
The Board finds that the evidence submitted by appellant in support of his application for
review does not raise a substantial question as to the correctness of OWCP’s most recent merit
decision and is insufficient to demonstrate clear evidence of error. The critical issue in this case
is whether appellant has shown clear evidence of error in OWCP’s July 5, 2007 decision which
found that the medical evidence did not establish that the employment incident caused an injury.
With his July 8, 2011 request for reconsideration, counsel submitted an August 20, 2010
report from Dr. Fritzhand, who attempted to explain the causal relationship between employment
incident and the subsequent findings of a ruptured right biceps and right shoulder impingement.
Dr. Fritzhand opined that “within reasonable medical probability” appellant’s “December 5,
2005 [employment] injury certainly caused both the impingement syndrome and the biceps
rupture.” However, this report is insufficient to establish clear evidence of error. While
Dr. Fritzhand sought to explain his opinion on causal relationship and provided some reasoning,
the Board notes that the term “clear evidence of error” is intended to represent a difficult
standard. The claimant must present evidence which on its face shows that OWCP made an
error (for example, proof of a miscalculation in a schedule award). Evidence such as a detailed,
well-rationalized report, which if submitted prior to OWCP’s denial, would have created a
conflict in medical opinion requiring further development, is not clear evidence of error and
would not require a review of a case.10
The Board finds that this evidence is insufficient to prima facie shift the weight of the
evidence in favor of appellant’s claim or raise a substantial question that OWCP erred in its
July 5, 2007 decision. Therefore, the Board finds that appellant has not presented clear evidence
of error.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.

10

Annie L. Billingsley, 50 ECAB 210 (1998).

4

ORDER
IT IS HEREBY ORDERED THAT the August 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 3, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.Z., Appellant
and
DEPARTMENT OF THE ARMY,
MCALLISTER MUNITION PLANT,
McAlester, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1033
Issued: September 12, 2008

Case Submitted on the Record

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

JURISDICTION
On February 25, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 16, 2007 denying his recurrence claim. He
also appealed a decision dated November 29, 2007 denying his request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over both the merits
and nonmerits of the claim.
ISSUES
The issues are: (1) whether appellant established that he sustained a recurrence of
disability beginning April 24, 2006 due to his accepted March 27, 2006 employment injury; and
(2) whether the Office properly denied his request for merit review of his claim under 5 U.S.C.
§ 8128.

FACTUAL HISTORY
On March 27, 2006 appellant, then a 45-year-old electrical worker, filed a traumatic
injury claim alleging that on that date he injured his lower back and left buttocks while lifting his
leg to get into a truck. The Office accepted the claim for lumbar strain/sprain.
On May 9, 2007 appellant filed a recurrence of disability beginning April 24, 2007. He
noted that his pain returned on April 24, 2007 and that his leg and back condition had worsened
after using a hammer drill that day. The employing establishment noted that appellant had some
restrictions following his injury, but returned to full-duty work on May 11, 2006.
On May 7, 2007 Dr. John W. Ellis, a treating Board-certified family practitioner, noted
the history of appellant’s March 27, 2006 employment injury, his medical history, the medical
treatment he received and that he returned to full-duty work. He diagnosed lumbosacral muscle
tendon strain, lumbar spine deranged disc and left lower extremity radiculopathy, which he
attributed to appellant’s employment injury. Dr. Ellis reported that after appellant returned to
full-duty work he continued to have “problems with numbness and tingling of the left foot” and
that appellant “is having the exact same complaints that he was having as a result of the workrelated injury of March 27, 2006.” He noted that appellant continued to have problems,
particularly with his left leg, since returning to full duty and that the condition progressively
worsened until he sought treatment on April 24, 2007. A physical examination of the back
revealed decreased range of motion and appellant “moves about in a very still and slow fashion.”
Dr. Ellis reported left lumbar paraspinal musculature tenderness on palpation and bilateral
lumbar paraspinal musculature spasm on palpation. In concluding, he opined that, as a result of
appellant’s March 27, 2006 employment injury, he “was temporarily totally disabled and unable
to work on April 26, 2006.” Dr. Ellis indicated that appellant was capable of performing lightduty work with restrictions of no lifting more than 10 pounds and no climbing, pushing, twisting,
pulling and bending.
In a May 31, 2007 letter, the Office informed appellant that the evidence was insufficient
to support his recurrence claim and advised him as to the type of medical and factual evidence
required to support his claim.
Subsequently, the Office received time analysis sheets dated June 4, 11 and 23, 2007;
claim for compensation (Form CA-7) dated June 4, 11 and 25, 2007 for the period April 26 to
May 31 and June 11, 2007; May 10, 2007 certificate to return to work on May 14, 2007 by
Dr. R. Merricar, a treating osteopath; an April 26, 2007 certificate to return to work by Dr. J.
Langley; and three disability notes dated May 7 and 31 and June 11, 2007 signed by Dr. Ellis.
The April 26, May 7 and 31, 2007 notes released him to work the day of the note with
restrictions while the June 11, 2007 note released appellant to work on June 12, 2007 with
restrictions. Appellant noted that he used 10 hours of leave without pay on April 26, May 7, 10
and 31 and June 20 to 21, 2007 for doctor’s visits and 10 hours of leave without pay on June 11,
2007 for undergoing a magnetic resonance imaging scan.
By decision dated July 16, 2007, the Office denied appellant’s claim for a recurrence of
disability.

2

On July 25, 2007 appellant requested reconsideration.
By nonmerit decision dated November 29, 2007, the Office denied appellant’s request for
reconsideration.1
LEGAL PRECEDENT -- ISSUE 1
The Office’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.2 If the disability results from new
exposure to work factors, the legal chain of causation from the accepted injury is broken, and an
appropriate new claim should be filed.3
While the medical opinion of a physician supporting causal relationship does not have to
reduce the cause or etiology of a disease or condition to an absolute certainty, neither can such an
opinion be speculative or equivocal. The opinion of a physician supporting causal relationship
must be one of reasonable medical certainty that the condition for which compensation is
claimed is causally related to federal employment and that such a relationship must be supported
with affirmative evidence, explained by medical rationale and be based on a complete and
accurate medical and factual background of the claimant.4 Medical conclusions unsupported by
medical rationale are of diminished probative value and are insufficient to establish causal
relation.5
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision regarding whether appellant
sustained a recurrence of disability.
The Office accepted appellant’s March 27, 2006 claim for lumbar strain/sprain.
Appellant returned to light-duty work following his injury and ultimately returned to full-duty
work on May 11, 2006. On April 24, 2007 he claimed that his condition had worsened. In
support of his claim, appellant submitted a May 7, 2007 report from his treating physician,
Dr. Ellis. Based upon a review of the medical evidence, employment injury history and physical
1

The Board notes that, following the November 29, 2007 nonmerit decision, the Office received additional
evidence. However, the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
2

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3 (May 1997); Donald T.
Pippin, 54 ECAB 631 (2003).
4

Conard Hightower, 54 ECAB 796 (2003).

5

Albert C. Brown, 52 ECAB 152 (2000).

3

examination, Dr. Ellis diagnosed lumbosacral muscle tendon strain, lumbar spine deranged disc
and left lower extremity radiculopathy, which he attributed to appellant’s employment injury.
He noted that appellant continued to have problems, particularly with his left leg, since returning
to full duty and that the condition progressively worsened until he sought treatment on
April 24, 2007. A physical examination of the back revealed decreased range of motion and
appellant “moves about in a very still and slow fashion.” Dr. Ellis reported left lumbar
paraspinal musculature tenderness on palpation and bilateral lumbar paraspinal musculature
spasm on palpation. He opined that, as a result of appellant’s accepted employment injury, he
was unable to work and was thus totally disabled beginning April 26, 2007. In addition, Dr. Ellis
reported that, while appellant was not capable of performing his usual duties, he was capable of
performing light-duty work with restrictions of no lifting more than 10 pounds and no climbing,
pushing, twisting, pulling and bending.
The Board notes that, while Dr. Ellis’ report is not completely rationalized as to whether
he sustained a recurrence of disability, it is consistent in indicating that appellant had a
worsening of his accepted condition.
It is well established that proceedings under the Act are not adversarial in nature and
while the claimant has the burden of establishing entitlement to compensation, the Office shares
responsibility in the development of the evidence to see that justice is done.6
The Board further notes that Dr. Ellis’ reports are not contradicted by any substantial
medical or factual evidence of record. While the reports are not sufficient to meet appellant’s
burden of proof to establish his claim, they raise an uncontroverted inference between his
claimed recurrence and the accepted diagnosed conditions and are sufficient to require the Office
to further develop the medical evidence and the case record.7
On remand the Office should prepare a statement of accepted facts and refer appellant,
along with his medical records, for a second opinion examination in order to obtain a rationalized
opinion as to whether appellant sustained a recurrence of disability causally related to the
March 27, 2006 employment injury.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained a recurrence of disability on April 24, 2007, causally related to the March 27, 2006
employment injury.8

6

R.E., 59 ECAB ___ (Docket No. 07-1604, issued January 17, 2008); Phillip L. Barnes, 55 ECAB 426 (2004);
see also Virginia Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell, 36 ECAB 699 (1985); William J. Cantrell, 34
ECAB 1233 (1993).
7

See Virginia Richard, supra note 6; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41
ECAB 354 (1989).
8

In light of the Board’s disposition on the first issue, the second issue is moot.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions dated November 29 and July 16, 2007
are set aside and the case remanded for further proceedings consistent with the above opinion.
Issued: September 12, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
St. Louis, MO, Employer
)
___________________________________________ )
M.E., Appellant

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

Docket No. 08-558
Issued: June 18, 2008

Case Submitted on the Record

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

JURISDICTION
On December 19, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated October 3, 2007 which denied her occupational
disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant has established that she developed osteoarthritis of the
back, hips, knees and ankles in the performance of duty.
FACTUAL HISTORY
On July 2, 2007 appellant, then a 57-year-old supervisor, filed an occupational disease
claim alleging that she developed osteoarthritis of the back, hips, knees and ankles as a result of
walking, standing and bending required in her position. She became aware of her condition on
August 1, 1996 and of the relationship of her condition to her work duties on June 2, 2003.
Appellant stopped work on April 6, 2007 and retired on July 1, 2007.

Appellant submitted a statement dated August 8, 2007, noting that from 1989 to 1997 she
worked as a supervisor and was exposed to extremely cold temperatures while performing her
work duties. She subsequently developed pneumonia and osteoarthritis in her hips, knees, back
and ankle. As a supervisor, appellant was required to walk, stand and bend during her entire
shift and could no longer perform these duties without severe pain. In support of her claim, she
submitted return to work slips dated February 2 to June 4, 2007 from Dr. Shankar Rao, a Boardcertified family practitioner and psychiatrist, who noted that appellant was a patient under his
care and, due to medical reasons, she was disabled from work from January 1 to March 11, 2007
to return effective March 12, 2007. On March 12, 2007 Dr. Rao noted that appellant was unable
to work from March 12 to April 9, 2007 and could return to work on April 10, 2007. On June 4,
2007 he noted that appellant was unable to work from April 10 to June 30, 2007 and would be
evaluated for a determination as to a return to work date. Appellant also submitted a list of her
treating physicians.
By letter dated August 15, 2007, the Office advised appellant of the factual and medical
evidence needed to establish her claim. It requested that she submit a physician’s reasoned
opinion addressing the relationship of her claimed condition to specific employment factors.
Appellant submitted a statement dated September 25, 2007, advising that her physician
informed her that her diagnosed osteoarthritic condition could have been caused by working in a
cold environment and to walking six to seven hours a day, six to seven days a week. She also
submitted statements from former coworkers.
In a decision dated October 3, 2007, the Office denied appellant’s claim for
compensation. It accepted that the work events and exposures occurred; however, the medical
evidence did not establish that she developed any diagnosed condition or injury causally related
to these factors. The Office noted that the disability slips of Dr. Rao did not provide any definite
diagnosis for appellant’s symptoms or discuss the causal relationship with the implicated
employment factors.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that the injury was
sustained in the performance of duty, as alleged, and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. 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.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
1

Gary J. Watling, 52 ECAB 357 (2001).

2

or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.2
ANALYSIS
It is not disputed that appellant’s duties as a supervisor included walking, standing,
bending and stooping. However, she has not submitted sufficient medical evidence to support
that her claimed conditions of osteoarthritis of the back, hips, knees and ankles was caused or
contributed related to by the employment factors or conditions. Appellant did not submit a
rationalized medical report from an attending physician addressing how specific employment
factors may have caused or aggravated her claimed conditions.
Appellant submitted work slips from Dr. Rao, who noted that she was a patient under his
care and, due to medical reasons, she was incapacitated and would be off work from January 1 to
June 30, 2007. Dr. Rao advised that appellant would be evaluated for a determination as to a
return to work date. However, these notes do not provide a firm diagnosis of a medical
condition,3 note a history of injury,4 or offer any opinion on how appellant’s employment could
have caused or aggravated her conditions.5 Consequently, these reports are of limited probative
value and do not establish her claim.
Appellant’s burden of proof includes the submission of rationalized medical opinion
evidence, based on a complete factual and medical background, supporting a causal relationship
between the employment and the diagnosed condition. Therefore, this evidence is insufficient to
meet her burden of proof. Because appellant has not submitted reasoned medical explaining how

2

Solomon Polen, 51 ECAB 341 (2000).

3

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
4

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).
5

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).

3

and why her osteoarthritis of the back, hips, knees and ankles is employment related, she has not
met her burden of proof.
CONCLUSION
The Board finds that appellant did not establish her occupational disease claim.
ORDER
IT IS HEREBY ORDERED THAT the October 3, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 18, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
INTERNAL REVENUE SERVICE, Ogden, UT,
Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1023
Issued: August 21, 2007

Case Submitted on the Record

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

JURISDICTION
On March 6, 2007 appellant filed a timely appeal from merit decisions of the Office of
Workers’ Compensation Programs dated March 22 and June 23, 2006 that denied her claim and a
December 29, 2006 decision that denied her request for a hearing. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an employment-related injury; and (2) whether the Office properly denied appellant’s
request for a hearing.
FACTUAL HISTORY
On January 3, 2006 appellant, then a 50-year-old tax examining technician, filed a Form
CA-2, occupational disease claim, alleging that repetitive motions at work including handling
heavy documents and pulling staples caused right arm carpal tunnel syndrome and nerve
damage. She first realized that she had the condition on August 2, 2005 and noted that she had

undergone surgery. Appellant also filed a Form CA-7, claim for compensation, for the period
December 1 through 24, 2005. By letters dated June 6, 2006, the Office informed appellant of
the evidence needed to support her claim and requested that the employing establishment
respond.
Appellant submitted medical evidence including an unidentified medical report dated
July 13, 2005 that noted complaints of left-sided neck, shoulder and arm pain and low back pain.
In a July 25, 2005 report, Alan Bybee, a physician’s assistant, diagnosed neck pain, right arm
paresthesia and right wrist tendinitis. In reports dated July 28 and August 5, 2005, Dr. John M.
Hemmersmeier, Board-certified in family medicine, noted appellant’s complaints of bilateral
hand pain and numbness. He found hand and shoulder tenderness on physical examination and
diagnosed bilateral hand pain consistent with osteoarthritis and recommended rheumatology
consult. In an August 23, 2005 report, Dr. A. Nadim Al-Sadat, a Board-certified neurologist,
noted appellant’s complaints of neck pain radiating down her right arm, right hand pain and
numbness radiating to her elbows, left hand complaints and low back pain radiating down her
left leg. He recommended electromyography (EMG). A September 1, 2005 EMG was
interpreted by Dr. Al-Sadat as abnormal, demonstrating evidence of right ulnar neuropathy
across the elbow, mild carpal tunnel syndrome on the left and no electrodiagnostic evidence of
carpal tunnel syndrome on the right.
By report dated September 8, 2005, Dr. Bruce E. Thomas, Board-certified in orthopedic
surgery, noted that appellant was seen for shoulder, elbow and wrist pain. He stated that she
reported that she was injured due to repetitive duties at work but that she did not elaborate.
Dr. Thomas diagnosed right cubital tunnel syndrome, right rotator cuff tendinitis or impingement
and mild left carpal tunnel syndrome. In a November 2005 treatment note, he advised that
surgery was planned. By report dated December 1, 2005, Dr. Thomas diagnosed right cubital
tunnel syndrome and requested that appellant work modified duty. On January 5, 2006 he noted
that he had performed a right ulnar nerve transposition and right carpal tunnel release on the
right. Dr. Thomas checked the “yes” box, indicating that the condition was employment related,
noting “repetitive motion” as a comment. He continued to provide follow-up treatment for her
arm surgery and treatment for her shoulder condition.
By report dated January 5, 2005, Dr. Gregory A. Benbow, an osteopath who is Boardcertified in family medicine and an employing establishment physician, noted appellant’s diffuse
and chronic complaints. He noted that her physician diagnosed cubital tunnel syndrome on the
right and that the EMG did not demonstrate carpal tunnel syndrome on the right. The employing
establishment also provided a job description and unsigned answers to Office questions.
In a decision dated March 22, 2006, the Office denied the claim on the grounds that the
medical evidence was insufficient to establish causal relationship.
On May 24, 2006 appellant requested reconsideration and provided a statement in which
she stated that since the beginning of 2005 she had been in document production. She described
her job duties which included stamping numerous documents by hand, pulling heavy duty staples
and editing many records. Appellant stated that she had had no previous problems with her
hands. In a March 30, 2006 report, Dr. Thomas noted a significant improvement in her shoulder.
On May 3, 2006 he described appellant’s job duties and recommended that she not return to

2

repetitive work.1 In a May 21, 2006 report, Mr. Bybee opined that appellant’s carpal tunnel and
elbow pain were secondary to a change of work.
By decision dated June 23, 2006, the Office denied modification of the March 22, 2006
decision. On November 20, 2006 her requested a hearing, and in a December 29, 2006 decision,
the Office denied her hearing request. The Office noted that, as appellant had previously
requested reconsideration, she was not entitled to a hearing as a matter of right and further
denied the request on the grounds that the issue in the case could be fully addressed by
requesting reconsideration with the Office.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.3
Office regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”4 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.5
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
1

Dr. Thomas described her job as “a great amount of repetitive work” in which she used a large instrument for
numbering and that she would process 10 to 20 packs of documents that included 25 to 50 documents each in an
eight-hour shift, five days a week. This entailed taking apart stapled documents that were anywhere from one to
four inches thick.
2

5 U.S.C. §§ 8101-8193.

3

Gary J. Watling, 52 ECAB 278 (2001).

4

20 C.F.R. § 10.5(ee).

5

Solomon Polen, 51 ECAB 341 (2000).

6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

3

evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained employment-related right carpal tunnel syndrome or nerve damage. The Board
initially notes that Mr. Bybee’s reports are not competent medical evidence as a physician’s
assistant is not considered a physician under the Act.9 While Dr. Hemmersmeier noted
appellant’s complaints of hand pain and numbness and Dr. Al-Sadat advised that she had
abnormal EMG findings, neither physician addressed the cause of her condition. 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.10 Furthermore, the EMG advised that
there was no electrodiagnostic evidence of right carpal tunnel syndrome. The reports of
Dr. Hemmersmeier and Dr. Al-Sadat are therefore insufficient to meet appellant’s burden of
proof.
Dr. Thomas, who performed nerve transposition surgery and carpal tunnel release on the
right, provided a January 5, 2006 attending physician’s report in which he checked the “yes” box
indicating that appellant’s right upper extremity condition and surgery were employment related
and provided a comment “repetitive motion.” It is well established that the checking of a box
“yes” in a form report, without additional explanation or rationale, is of diminished probative
value and insufficient to establish causal relationship.11 While Dr. Thomas provided a brief
comment in explanation, to establish causal relationship, a claimant must submit a physician’s
report in which the physician reviews the employment factors identified by the claimant as
causing the claimed condition and, taking these factors into consideration as well as findings
upon examination, state whether the employment injury caused or aggravated the diagnosed
conditions and present medical rationale in support of his or her opinion.12 In a May 3, 2006
report, Dr. Thomas merely advised that appellant should not return to repetitive work and did not

7

Id.

8

Dennis M. Mascarenas, 49 ECAB 215 (1997).

9

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

10

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

11

Joan R. Donovan, 54 ECAB 615 (2003).

12

D.D., 57 ECAB ____ (Docket No. 06-1315, issued September 14, 2006).

4

provide a cause of any diagnosed condition.13 His opinion is therefore insufficient to establish
causal relationship.
While the medical opinion of a physician supporting causal relationship does not have to
reduce the cause or etiology of a disease or condition to an absolute certainty, neither can such
opinion be speculative or equivocal. The opinion of a physician supporting causal relationship
must be one of reasonable medical certainty that the condition for which compensation is
claimed is causally related to federal employment and such relationship must be supported with
affirmative evidence, explained by medical rationale and be based upon a complete and accurate
medical and factual background of the claimant.14 The medical evidence in this case is
insufficient to establish that appellant has an employment-related right carpal tunnel syndrome or
nerve damage.
LEGAL PRECEDENT -- ISSUE 2
Any claimant dissatisfied with a decision of the Office shall be afforded an opportunity
for an oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted in writing, within 30 days of the date
of the decision for which a hearing is sought. If the request is not made within 30 days or if it is
made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.15 The Board has held that the Office, in its broad
discretionary authority in the administration of the Act, has the power to hold hearings in certain
circumstances where no legal provision was made for such hearings and that the Office must
exercise this discretionary authority in deciding whether to grant a hearing.16 The Office’s
procedures, which require the Office to exercise its discretion to grant or deny a hearing when
the request is untimely or made after reconsideration, are a proper interpretation of the Act and
Board precedent.17
ANALYSIS -- ISSUE 2
In this case, in its December 29, 2006 decision, the Office denied appellant’s request for a
hearing on the grounds that she had previously requested reconsideration with the Office. The
Board finds that the Office properly found that appellant was not, as a matter of right, entitled to
a hearing since she had previously requested reconsideration on May 24, 2006. While the Office
also has the discretionary power to grant a hearing request when a claimant is not entitled to a
hearing as a matter of right, the Office, in its December 29, 2006 decision, properly exercised its
discretion by stating that it had considered the matter in relation to the issue involved and had
denied appellant’s request on the basis that the issue in this case could be addressed through a
13

Willie M. Miller, supra note 10.

14

Patricia J. Glenn, 53 ECAB 159 (2001).

15

Claudio Vazquez, 52 ECAB 496 (2001).

16

Marilyn F. Wilson, 52 ECAB 347 (2001).

17

Claudio Vazquez, supra note 15.

5

reconsideration application. The Board has held that, as the only limitation on the Office’s
authority is reasonableness, abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both
logic and probable deduction from established facts.18 In the present case, the evidence of record
does not indicate that the Office committed any act in connection with its denial of appellant’s
hearing request which could be found to be an abuse of discretion. Appellant retains the right to
request reconsideration with the Office.19
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty causally related to factors of employment. The
Board further finds that the Office properly denied her request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 29, June 23 and March 22, 2006 be affirmed.
Issued: August 21, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

18

See Claudio Vazquez, supra note 15; Daniel J. Perea, 42 ECAB 214, 221 (1990).

19

20 C.F.R. § 10.607.

6


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

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0523
Issued: February 15, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 27, 2016 appellant, through counsel, filed a timely appeal from an
October 29, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish more than five percent
permanent impairment of his right upper extremity and three percent permanent impairment of
his left upper extremity, for which he previously received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. OWCP accepted that on August 7, 2007
appellant, then a 47-year-old clerk, sustained a right shoulder sprain and a right rotator cuff tear
due to moving a heavy mail container. It also accepted the condition of temporary aggravation
of left shoulder tendinitis, resolved, which was sustained as a consequence of his accepted right
shoulder conditions.3 On March 17, 2008 appellant underwent OWCP-authorized surgery of his
right shoulder, which included repair of his right rotator cuff tear.
In an October 27, 2009 report, Dr. David Weiss, an attending osteopath, concluded that
appellant had five percent permanent impairment of his right upper extremity and five percent
permanent impairment of his left upper extremity under the standards of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (6th ed., 2009).
In August 2010, OWCP referred appellant for examination to Dr. Stuart L. Gordon, a
Board-certified orthopedic surgeon.4
In September 9 and December 10, 2010 reports,
Dr. Gordon reported findings of his physical examination of appellant. His reports formed the
basis for OWCP’s acceptance of appellant’s claim for temporary aggravation of left shoulder
tendinitis, resolved.
On July 2, 2012 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and an
OWCP medical adviser, provided an opinion on the extent of permanent impairment of
appellant’s upper extremities. He reviewed the medical evidence of record, including the
examination findings of Dr. Weiss and Dr. Gordon, and concluded that appellant had five
percent permanent impairment of his right arm and three percent permanent impairment of his
left arm under the sixth edition of the A.M.A., Guides.
In a January 4, 2013 decision, OWCP granted appellant a schedule award for five percent
permanent impairment of his right upper extremity and three percent permanent impairment of
his left upper extremity. The award ran for 24.96 weeks and was based on the impairment rating
of Dr. Berman. Appellant claimed additional permanent impairment. In an October 18, 2013
decision, OWCP found that he did not meet his burden of proof to establish additional
impairment.

3

Appellant previously underwent left shoulder surgery in 1995.

4

Dr. Gordon performed his examination as an impartial medical specialist who was asked to resolve a conflict in
the medical opinion evidence regarding whether appellant had developed a left shoulder condition consequential to
his August 7, 2007 right shoulder injury. See 5 U.S.C. § 8123(a).

2

By decision dated October 2, 2014,5 the Board set aside OWCP’s October 18, 2013
decision and remanded the case to OWCP for further development. The Board found that there
was a conflict in the medical opinion evidence regarding the extent of appellant’s upper
extremity permanent impairment between Dr. Berman and Dr. Weiss. The Board remanded the
case to OWCP for referral of appellant to an impartial medical specialist for examination and an
opinion on this matter, to be followed by the issuance of a de novo decision.
On remand, OWCP referred appellant for an impartial medical examination to Dr. Zohar
Stark, a Board-certified orthopedic surgeon. In a March 19, 2015 report, Dr. Stark opined that
the five percent impairment rating that appellant received for his right upper extremity was
appropriate. Regarding the left upper extremity, Dr. Stark noted that, under Table 15-5 on page
402 of the sixth edition the A.M.A., Guides, appellant’s diagnosis-based impairment (DBI) of
tendinitis (residual loss, functional with normal motion) fell under class 1, grade C and equaled
three percent impairment of the left upper extremity. Dr. Stark noted that appellant’s functional
history grade modifier was 1, his physical examination grade modifier was 1, and his clinical
studies grade modifier was 1. He noted that appellant had a net adjustment of zero and indicated
that therefore his permanent impairment remained at the default value of three percent for the left
upper extremity.
By decision dated March 31, 2015, OWCP found that appellant failed to establish more
than five percent permanent impairment of the right upper extremity and three percent for the left
upper extremity. Appellant requested a review of the written record with an OWCP hearing
representative and, in a decision dated August 18, 2015, the hearing representative affirmed
OWCP’s March 31, 2015 decision.
Appellant submitted an August 4, 2015 report of Dr. Michael E. Cohen, an attending
osteopath and Board-certified orthopedic surgeon. Dr. Cohen discussed appellant’s factual and
medical history and reported findings of his physical examination on August 4, 2015. He noted
that appellant’s claim was accepted for several conditions including rotator cuff tear of the right
shoulder and temporary aggravation of left shoulder tendinitis. Dr. Cohen listed findings for
range of bilateral shoulder motion upon flexion, extension, abduction, adduction, internal
rotation, and external rotation. He applied the range of motion (ROM) method of impairment
rating under Table 15-34 (Shoulder Range of Motion) on page 475 of the sixth edition of the
A.M.A., Guides, noting that the ROM findings established six percent permanent impairment of
each upper extremity.6
OWCP referred the case record to Dr. Berman, in his role as an OWCP medical adviser,
for evaluation of Dr. Cohen’s impairment rating report. In a report dated October 12, 2015,
Dr. Berman discussed Dr. Stark’s March 19, 2015 impairment rating, noting that he used the

5

Docket No. 14-1113 (issued October 2, 2014).

6

Dr. Cohen indicated that application of Table 15-35 (Range of Motion Grade Modifiers) and Table 15-36
(Functional History Grade Adjustments: Range of Motion) on page 477 did not change appellant’s final permanent
impairment from six percent permanent impairment of each upper extremity.

3

DBI rating method, and Dr. Cohen’s August 4, 2015 impairment rating, noting that he used the
ROM rating method. Dr. Berman noted:
“According to the [A.M.A., Guides], the calculation for [s]chedule [a]ward should
be based upon diagnostic[-]related groupings wherever possible and not based
upon [ROM] calculation. [ROM] calculation should only be utilized if and when
the diagnostic[-]related groupings cannot be utilized or are otherwise
inappropriate. Therefore, the calculation of the [s]chedule [a]ward as submitted
by Dr. Cohen is incorrect and should not be accepted.
“Dr. Stark was in agreement with the previously submitted [s]chedule [a]ward
that I recommended in my letter of July 2, 2012 of [five percent] impairment right
upper extremity and [three percent] for left upper extremity and therefore there is
no change from my previously submitted recommendation.
“In summary, this claimant has a [five percent] impairment right upper extremity
and [three percent] impairment left upper extremity….”
In a decision dated October 29, 2015, OWCP determined that appellant failed to meet his
burden of proof to establish more than five percent permanent impairment of his right upper
extremity and three percent permanent impairment of his left upper extremity, for which he
previously received a schedule award. It found that the weight of the medical evidence with
respect to his upper extremity impairment rested with the October 12, 2015 opinion of
Dr. Berman. OWCP noted that Dr. Berman found that it was inappropriate for Dr. Cohen to use
the ROM method for rating permanent impairment.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of the Office of Workers’
Compensation Programs.7 Section 8107 of FECA sets forth the number of weeks of
compensation to be paid for the permanent loss of use of specified members, functions, and
organs of the body.8 FECA, however, does not specify the manner by which the percentage loss
of a member, function, or organ shall be determined. To ensure consistent results and equal
justice under the law, good administrative practice requires the use of uniform standards
applicable to all claimants. Through its implementing regulations, OWCP adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.9
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A., issued a 52-page document entitled “Clarifications and Corrections,
7

See 20 C.F.R. §§ 1.1-1.4.

8

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
9

20 C.F.R. § 10.404. See also, Ronald R. Kraynak, 53 ECAB 130 (2001).

4

5 U.S.C.

[s]ixth [e]dition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).10 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.11
ANALYSIS
The issue on appeal is whether appellant met his burden of proof to establish more than
five percent permanent impairment of his right upper extremity and three percent permanent
impairment of his left upper extremity, for which he previously received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.12
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.13 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.14
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
11

Isidoro Rivera, 12 ECAB 348 (1961).

12

T.H., Docket No. 14-0943 (issued November 25, 2016).

13

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

14

Supra note 12.

5

cases involving upper extremity impairment, the Board will set aside the October 29, 2015
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 29, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: February 15, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6