United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Mark Coby, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-956
Issued: April 15, 2010

Case Submitted on the Record

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

JURISDICTION
On February 27, 2009 appellant, through her attorney, filed a timely appeal of
November 21, 2008 and February 3, 2009 nonmerit decisions of the Office of Workers’
Compensation Programs denying her request for reconsideration because it was not timely filed
and failed to establish clear evidence of error. Because more than one year has elapsed between
the last merit decision dated February 13, 2007 and the filing of the appeal, the Board lacks
jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and
501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On June 9, 2006 appellant, then a 40-year-old modified letter carrier, filed an emotional
condition claim alleging that her postmaster, Michael Guerrero, treated her unfairly and she was

exposed to a hostile work environment because of her disability. In an October 10, 2006
statement, she stated that she had worked in a modified job for over 10 years. Appellant
indicated that Mr. Guerrero, by letter dated May 18, 2005, told her she was no longer considered
a limited-duty employee but a full-time duty employee. She stated that she was removed from
her modified job and forced into a full-time vacant carrier’s job despite her permanent physical
conditions. Since May 18, 2005, appellant alleged that she was threatened with a reduction of
work hours to less than 40 hours per week, she was constantly monitored by management and
she was sent home without pay on July 19 and 20, 2005 even though there was work to be done
and many other injured workers were allowed to continue working. She noted that she filed her
claim when she was removed from her 10-year modified job. Appellant stated that she was
routinely followed by Areen Dhami, a supervisor, and she was the only injured carrier required
to report express mail deliveries. She further alleged that she was reprimanded by Jerry Phillips,
a supervisor, on August 8, 2005 for sitting down while she was assigned to watch Carrier
Mercado case mail, although the union contract allows carriers to use a stool. Evidence included
a consultation report from Jan Christian Stribolt, M.S., who opined that appellant’s reported
symptoms were consistent with an anxiety disorder due to chronic pain from her orthopedic
condition.
By decision dated February 13, 2007, the Office denied appellant’s claim on the grounds
that no compensable employment factor had been established. It noted that appellant had filed a
grievance on the matter of whether or not the removal of her permanent modified job offer was
an error on the part of the employing establishment, but no final decision had been rendered.
Counsel requested reconsideration on October 22, 2008. He noted the reconsideration of
the claim was based on a July 25, 2008 Equal Employment Opportunity (EEO) Commission
decision, wherein an EEO administrative judge found that appellant had been made to work
outside of her physician’s restrictions beginning in August 2005 and the employing
establishment subjected appellant to discrimination from July 2005 based on her disability.
Counsel noted that the administrative judge further found that appellant had proven disparate
treatment because of her disability and established harassment creating a discriminatorily hostile
work environment and stated: “I also find that she (claimant) met the objective standard namely,
that a reasonable person in her position would have found the environment to be ‘permeated with
discriminatory intimidation, ridicule, and [insult]’ that [wa]s ‘sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive environment.’” The
evidence submitted with the reconsideration request included: a March 7, 2007 report from
Dr. Masami Hattori, a Board-certified anesthesiologist, pertaining to her orthopedic conditions; a
January 8, 2008 statement regarding Federal Employees’ Group Life Insurance (FEGLI)
coverage; and September 12, 2008 hospital notes. A copy of the July 25, 2008 EEO decision
was not submitted to the record.
By decision dated November 21, 2008, the Office denied appellant’s request for
reconsideration on the grounds that her request was untimely filed and she did not show clear
evidence of error. The decision read: “The basis for this decision is that your attorney
referenced new evidence from an EEO decision dated July 25, 2008; however, this Office has no
record of receiving the new evidence referenced and even if this evidence had been received it
would not alter the February 13, 2007 decision.”

2

In a November 25, 2008 submission, counsel requested reconsideration and submitted a
copy of the July 25, 2008 EEO decision. Additional evidence included: a December 13, 2008
letter from appellant to the employing establishment requesting reemployment; an inpatient/
outpatient registration form from St. Rose Hospital; a September 12, 2008 medical prescription
for Norco; an October 22, 2008 medical note from Dr. Hattori; copies of leave requests; a
December 23, 2008 return to duty notice from the employing establishment; and a December 18,
2008 job offer.
By decision dated February 3, 2009, the Office denied appellant’s request for
reconsideration on the grounds that her request was untimely filed and she did not show clear
evidence of error. After acknowledging receipt of the documents submitted by appellant, it
found: “Your attorney, Mark Coby, noted in the reconsideration request he enclosed a copy of
an EEO decision which found that the findings in the denial decision had been in error and that
actions set forth in appellant’s claim were not administrative functions or issues but were error or
abuse. However, the hearing from the EEO did not prove that the Office erred when we issued
our decision. Therefore, the evidence submitted failed to demonstrate clear evidence of error.”
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Secretary of Labor may
review an award for or against payment of compensation at any time on his own motion or on
application.1 The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 8128(a). To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant must file her application for review within one year
of the date of that decision.2 The Board has found that the imposition of the one-year limitation
does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.3
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.4 Office regulations and procedure provide that the Office will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.607(a).

3

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

4

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

3

C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on the
part of the Office.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.6 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.7 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.9 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.10 The Board
makes an independent determination of whether a claimant has submitted clear evidence of error
on the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.11
ANALYSIS
The Board finds that, as more than one year has elapsed from the date of issuance of the
last merit decision in this case, and the February 13, 2007 decision of the Office, appellant’s
original request for reconsideration dated October 22, 2008 and subsequent request dated
November 25, 2008 were untimely filed. Consequently, appellant must demonstrate clear
evidence of error by the Office in denying her claim for compensation.12
The underlying claim in this case is for an emotional condition due to being improperly
removed from her modified job and exposed to a hostile work environment because of her
disability. The initial question presented in an emotional condition claim is whether appellant
has alleged and substantiated compensable factors of employment as contributing to her
condition. 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
5

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004). Office procedure further provides, the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that the Office 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. Id. at Chapter 2.1602.3c.
6

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

7

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

8

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

9

See Leona N. Travis, supra note 7.

10

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

11

Pete F. Dorso, 52 ECAB 424 (2001).

12

20 C.F.R. § 10.607(b).

4

adversely affected by factors of her federal employment.13 The Office denied appellant’s
emotional condition claim because of failure to establish compensable factors of employment.
In the November 21, 2008 decision, the Office denied appellant’s untimely request for
reconsideration noting that appellant’s attorney had referenced an EEO decision but that it was
not in the record. The Office noted, however, that even if it had been in the record, “it would not
alter the February 13, 2007 decision.” On reconsideration, appellant submitted the July 25, 2008
EEO decision which found that the employing establishment failed to accommodate appellant’s
disability beginning in August 2005 and subjected her to disparate treatment and harassment
from July 2005 because of her disability. The Office again denied appellant’s claim finding that
the “hearing from the EEO did not prove that the Office erred when we issued our decision.”
It is an elementary principle of workers’ compensation law, however, which the Board
has often reiterated, that the Office is required to make findings of fact and a statement of
reasons regarding the material facts of the case.14 In both the November 21, 2008 and the
February 3, 2009 decision, the Office failed to state any findings of fact or statement of reasons
in finding the requests for reconsideration failed to establish clear evidence of error, nor did the
Office address the significance of the EEO decision to the underlying issue in the case.
The EEO decision finding that the employing establishment canceled appellant’s
modified-duty position because of a discriminatory motive and that she suffered disparate
treatment because of her work injury could, if credited, establish compensable factors related to
her emotional condition claim. The Board finds that the July 25, 2008 EEO decision, while not
binding in its result,15 could shift the weight of the evidence in this case in favor of appellant as it
offers support of her allegations of unfair treatment and hostile work environment and may raise
a substantial question as to whether the employing establishment committed error or abuse in the
handling of personnel matters related to appellant.16 The Office’s summary findings in rejecting
the evidence appellant submitted with her request for reconsideration do not comply with the
review requirements under the Act, as the Board held in Tonja R. Hiebert.17
In Hiebert,18 the employee had filed, among other things, an emotional condition claim
based on harassment. She had established some compensable factors but had not established
harassment. As for the compensable factors, the Office found the medical evidence insufficient
to establish causal relationship. In an untimely application for reconsideration, the employee
submitted an EEO decision that found she had been subjected to a hostile work environment.
The Office denied the request for reconsideration as untimely filed and finding no clear evidence
of error. It noted the underlying question was a medical one and the EEO decision was not
13

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

14

See 20 C.F.R. § 10.126; Beverly Dukes, 46 ECAB 1014, 1017 (1995).

15

See Daniel Deparini, 44 ECAB 657 (1993).

16

See W.D., Docket No. 07-2002 (issued January 14, 2008).

17

Tonja R. Hiebert, 55 ECAB 706 (2004).

18

Id.

5

medical evidence. The Board found that the underlying issue was not limited to the medical
evidence alone. Although the Office had accepted several compensable factors, it had not
accepted harassment or discrimination as a compensable factor in the claim. The Board found:
“The Office’s brief and incomplete assessment of the evidence submitted did not satisfy its
obligation to provide a decision with appropriate findings and clearly stated reasons.” The Board
found that the Office had failed to properly adjudicate the clear evidence of error issue.
Similar to Hiebert, despite the untimeliness of appellant’s request for reconsideration, the
case must be remanded for the Office to describe the evidence appellant submitted and give
detailed reasons for accepting or rejecting it.
On appeal, appellant’s representative cites to Jimmy L. Day.19 In that case, the employee
had filed a claim alleging an emotional condition as a result of retaliatory actions taken against
him at the employing establishment. One of the actions was a disciplinary action claiming that
he had engaged in improper conduct while on duty. In an untimely application for
reconsideration, he submitted an EEO decision in his favor, which had not been available to the
employee in sufficient time to support a timely request for reconsideration. The EEO decision
found that he had been victimized and retaliated against at the employing establishment due to a
grievance that had been filed by his wife, who was also an employing establishment employee.
The Board noted that administrative and personnel matters of the employing establishment can
be compensable factors where evidence of error or abuse is established and found that the EEO
decision, while not binding in its result, “raised a substantial question as to whether the
employing establishment committed error or abuse in the handling of its personnel matters with
respect to appellant.” The Board found that the Office abused its discretion in failing to reopen
the employee’s claim for further merit review.” Contrary to the case at issue herein, in Day, the
Office analyzed the evidence presented in the employee’s untimely request for reconsideration
and made findings as to whether the EEO decision provided clear evidence of error. Although
the Board disagreed with the Office’s determination, the Office properly adjudicated the matter
presented.
CONCLUSION
The Board finds that the Office failed to properly adjudicate appellant’s request for
reconsideration.

19

Jimmy L. Day, 48 ECAB 654 (1997).

6

ORDER
IT IS HEREBY ORDERED THAT the February 3, 2009 and the November 21, 2008
decisions of the Office of Workers’ Compensation Programs are set aside and the case is
remanded to the Office for further action consistent with this decision.
Issued: April 15, 2010
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Auburndale, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1284
Issued: January 27, 2021

Case Submitted on the Record

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

JURISDICTION
On June 8, 2020 appellant filed a timely appeal from a March 31, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic incident
occurred in the performance of duty on June 14, 2019, as alleged.
FACTUAL HISTORY
On July 12, 2019 appellant, then a 33-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that at 1:00 p.m. on June 14, 2019 she experienced upper back pain
and a muscle-related back strain while lifting and using a satchel while in the performance of duty.
1

5 U.S.C. § 8101 et seq.

On the reverse side of the claim form her supervisor checked a box marked “No” to indicate his
belief that she was not in the performance of duty and noted that she never reported her injury.
Appellant stopped work on June 18, 2019.
In a June 18, 2019 medical note, Dr. Matthias Nurnberger, a Board-certified in internal
medicine, noted that appellant was seen that day and recommended that she could return to work
on June 25, 2019.
Dr. Dainius Juknelis, a Board-certified internist, opined in a June 25, 2019 medical note
that appellant could return to full-duty work on July 2, 2019.
In a July 10, 2019 medical note, Dr. Prakash Bandari, Board-certified in internal medicine,
recommended that appellant remain off work until July 17, 2019.
R.T., appellant’s supervisor, controverted appellant’s claim in a July 15, 2019 statement,
arguing that there was no specification as to where her injury occurred on June 14, 2019. He
provided that he completed a 3999 route review of her route for that day and claimed that she
completed her route and did not appear to be in pain nor mention to be in pain at any point before
she checked out of work. Appellant continued to work without mentioning an injury for an
additional two days. She informed R.T. that she had a doctor’s appointment on June 18, 2019 and
needed to leave work during her shift. During a meeting concerning her extended absence from
work on July 12, 2019, appellant reported that she injured her back on June 14, 2019.
In a July 16, 2019 statement, the employing establishment controverted appellant’s claim,
asserting that her medical documentation did not state that her injury was work related. It also
challenged her claim based on fact of injury and indicated that management was observing her on
June 14, 2019 during a 3999 route review.
In a July 17, 2019 duty status report (Form CA-17), Dr. Bandari diagnosed a heavy lifting
injury due to lifting and using a satchel at work on June 14, 2019.2 He also provided work
restrictions. In an attending physician’s report of even date, Dr. Bandari diagnosed lumbar back
pain with no radiculopathy precipitated by heavy lifting and wearing a satchel on June 16, 2019.
He checked a box marked “Yes” to indicate his opinion that appellant’s condition was caused or
aggravated by her federal employment.
In a July 23, 2019 medical note, Dr. Bandari diagnosed back pain and referred appellant to
physical therapy for further treatment. In a separate note of even date, he recommended that she
remain off work until further notice.
In a July 26, 2019 statement, appellant explained the events of the alleged June 14, 2019
employment incident in which she was assigned to a route that management would walk with her.
She advised management that she would be unable to work the route because the use of a satchel
would “kill” her back, but stated that she was forced to anyway. As she worked the route, appellant
felt pressure on her back and around 1:00 p.m. the pain started to kick in, which caused her to
inform her manager. She continued to work days after, but indicated that the pain in her back
2

Dr. Bandari identified August 14, 2019 as the date of injury; however, this appears to be a typographical error.

2

continued to worsen. On June 18, 2019 appellant could not make it through the first few hours of
her shift and called her doctor to make an appointment that same day. She informed her manager
of her appointment and when she returned she claimed that he stated that he “can’t just go by your
words because you don’t have notice.” Appellant concluded by asserting that management never
informed her that she needed to report her injury or of any forms that she needed to submit until
July 12, 2019 when she called the Union Hall.
In a July 29, 2019 report, Michelle Marino, a physical therapist, evaluated appellant for
low back pain as it related to the alleged June 14, 2019 employment incident and provided
recommendations for her treatment for symptoms consistent with a thoracic-lumbar strain.
In a development letter dated July 30, 2019, OWCP advised appellant of the deficiencies
of her claim and instructed her as to the factual and medical evidence necessary to establish her
claim. It attached a questionnaire seeking a full description of the events and circumstances
surrounding the alleged June 14, 2019 employment incident. OWCP afforded her 30 days to
provide the necessary information.
In medical reports dated June 18 and 25, 2019, Drs. Nurnberger and Juknelis evaluated
appellant for low back pain precipitated by heavy lifting and carrying a mail satchel at work and
diagnosed acute bilateral thoracic back pain. In a June 25, 2019 medical note, Dr. Juknelis referred
appellant to physical therapy.
Dr. Amogh Srivastava, a Board-certified radiologist, reported on June 26, 2019 that an xray scan of appellant’s thoracic spine revealed no acute abnormality.
In medical reports dated from July 10 to August 2, 2019, Dr. Bandari evaluated appellant’s
back pain related to heavy lifting and wearing a satchel at work. He diagnosed musculoskeletal
back pain from heavy lifting.
Dr. Bandari, in an August 6, 2019 Form CA-17, diagnosed a back strain and sacroiliac joint
dysfunction due to the alleged June 14, 2019 employment incident where appellant lifted and used
her satchel. He also provided work restrictions. In an attending physician’s report (Form CA-20)
of even date Dr. Bandari diagnosed a back sprain, sacroiliac joint dysfunction and bilateral thoracic
pain. He checked a box marked “Yes” to indicate that appellant’s conditions were caused or
aggravated by her federal employment, and explained that they were caused by heavy lifting and
carrying a satchel at work.
In a medical report of even date, Dr. Bandari recounted his history of treatment for bilateral
thoracic pain and a back sprain, which appellant described as the result of heavy lifting at work.
On evaluation he opined that it was clear that her back sprain, bilateral thoracic pain and sacroiliac
joint dysfunction were precipitated by the heavy lifting and wearing of her satchel for long hours
of the day at work.
In an August 7, 2019 medical note, Dr. Bandari advised that appellant be allowed to use a
push cart to perform her work duties due to a sacroiliac joint injury and placed limitations on the
amount of weight she was able to lift.

3

By decision dated August 30, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that the injury and/or events
occurred as she described. It noted that she had not responded to its July 30, 2019 development
questionnaire or provided information clarifying the alleged June 14, 2019 employment incident.
OWCP concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
On September 18, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on January 15, 2020. She testified that
on June 14, 2019 she requested that another employee be selected to go out on the route because
the satchel made her back uncomfortable. While on the route, appellant claimed that her manager
witnessed her constantly switch the side she carried her satchel on and that around 1:00 p.m. her
back started to hurt badly. When they returned to the office, her supervisor stated that he could
not stop appellant’s work because she did not provide notice from a doctor. Appellant explained
that she could not afford to miss work so she attempted to work through her pain for the next two
days until she went to her doctor who advised that she not return to work. She informed her
manager, but claimed that he never advised her that she could file a claim. Appellant also noted
that she usually never used a satchel because it aggravated her back, but that she was required to
carry one on her June 14, 2019 route with management. The hearing representative held the case
record open for 30 days for the submission of additional evidence.
Appellant submitted reports dated from September 25 to October 7, 2019 in which
Dr. Stephen Loughlin, a chiropractor, evaluated her for chronic pain in her neck and thoracic spine.
Dr. Loughlin’s assessment detailed a flare up of multiple chronic conditions and advised that she
return at least three times a week for treatment. His remaining reports detailed the procedures
utilized to treat appellant’s conditions.
By decision dated March 31, 2020, OWCP’s hearing representative affirmed OWCP’s
August 30, 2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5 These are the essential elements of each and every

3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).

4

compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.8 Second, the
employee must submit sufficient evidence to establish that the employment incident caused a
personal injury.9
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.10 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.11 An employee’s
statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.12
ANALYSIS
The Board finds that appellant has met her burden of proof to establish a traumatic incident
in the performance of duty on June 14, 2019, as alleged.
On appellant’s July 12, 2019 Form CA-1 she explained that at 1:00 p.m. on June 14, 2019
she experienced upper back pain and a muscle-related back strain while lifting and carrying a
satchel while in the performance of duty.

6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11

Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

12

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

5

As noted, an employee’s statement alleging that an injury occurred at a given time and
place, and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence.13
Herein, appellant has consistently reported that on June 14, 2019 she experienced back pain
while lifting and carrying a mail satchel while on her route. She submitted a detailed account of
the employment incident in her July 26, 2019 statement wherein she explained that on June 14,
2019 she informed her manager that carrying a satchel would aggravate her back and that around
1:00 p.m. the pressure on her back from the satchel began to cause her pain. Appellant attempted
to work through her pain until she left work on June 18, 2019 to attend a doctor’s appointment.
During the January 15, 2020 oral hearing, she again informed the hearing representative that she
was required on June 14, 2019 to carry a satchel on her route and that at 1:00 p.m. she informed
her manager that the satchel was causing her back pain.
Additionally, appellant submitted medical evidence from Dr. Bandari, which noted that she
injured her back while carrying a satchel at work on June 14, 2019. Specifically, Dr. Bandari’s
August 6, 2019 Form CA-17 and Form CA-20, as well as his July 17, 2019 Form CA-17 all
indicated June 14, 2019 as the date of injury in which she injured her back while carrying her
satchel. Further, the July 29, 2019 evidence from her physical therapist also identified June 14,
2019 as the date of injury.
The history of the June 14, 2019 employment incident was confirmed by Dr. Bandari’s
medical evidence, which referred to the date of the employment incident. Further, while the
employing establishment controverted appellant’s claim, it failed to provide strong or persuasive
evidence to refute her allegations.14 Therefore, the Board finds that this evidence establishes that
the alleged June 21, 2019 employment incident occurred as alleged.15 Appellant has, thus,
established the first component of fact of injury.16
As appellant has established the claimed employment incident occurred as alleged, the
question becomes whether this employment incident caused an injury.17 As OWCP found that she
had not established fact of injury, it did not evaluate the medical evidence. Thus, the Board will
set aside OWCP’s March 31, 2020 decision and remand the case for consideration of the medical
evidence of record.18 After such further development as deemed necessary, OWCP shall issue a
de novo decision addressing whether appellant has met her burden of proof to establish a medical
condition causally related to the accepted June 14, 2019 employment incident.

13

Id.

14

Supra note 12.

15
J.C., Docket No. 18-1803 (issued April 19, 2019); M.C., supra note 12; M.M., Docket No. 17-1522
(April 25, 2018).
16

J.C., id.

17

Id.

18

C.H., Docket No. 19-1781 (issued November 13, 2020).

6

CONCLUSION
The Board finds that appellant has met her burden of proof to establish that a traumatic
incident occurred in the performance of duty on June 14, 2019, as alleged. The Board further finds
that the case is not in posture for decision regarding whether she has established a medical
condition causally related to the June 14, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 27, 2021
Washington, DC

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1247
Issued: November 1, 2013

Case Submitted on the Record

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

JURISDICTION
On April 30, 2013 appellant, through his attorney, filed a timely appeal from a merit
decision of the Office of Workers’ Compensation Programs’ (OWCP) dated February 13, 2013.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained injuries to his neck, left shoulder and left arm in
the performance of duty on June 3, 2011.
FACTUAL HISTORY
On December 20, 2011 appellant, a 52-year-old letter carrier, filed a claim for benefits,
alleging that he injured his neck, left shoulder, left arm and back while placing mail into a
mailbox on June 3, 2011.
1

5 U.S.C. § 8101 et seq.

By letter to appellant dated January 6, 2012, OWCP advised him that it required
additional factual and medical evidence to determine whether he was eligible for compensation
benefits. It asked him to submit a comprehensive medical report from his treating physician
describing his symptoms and a medical opinion explaining the cause of any diagnosed condition.
By decision dated February 8, 2012, OWCP denied appellant’s claim, finding that he
failed to establish fact of injury. It found that he failed to establish that he sustained the claimed
injuries at the time, place and in the manner alleged.
On February 24, 2012 appellant requested an oral hearing, which was held on
June 6, 2012.
Appellant submitted a report of a magnetic resonance imaging (MRI) scan of the cervical
spine dated July 12, 2010, received by OWCP on March 2, 2012. The results of this test
indicated that he had mild, multi-level discovertebral ridging, maximal C5-6 through C7-T1,
particularly on the left at C5-6, with mild multi-level cord compression without cord signal
alteration; and mild to moderate multi-level foraminal stenosis, most prominent at C4-5 and
C5-6.
In a report of a cervical MRI scan dated March 5, 2012, it was indicated that appellant
had multilevel disc pathology essentially unchanged from the previous examination.
In a July 9, 2012 report, Dr. Nirav K. Shah, Board-certified in neurosurgery, stated that
appellant had complaints of pain in his neck and shoulders. He stated findings on examination
and opined that appellant had cervical radiculopathy, the primary diagnosis, cervical neck pain
and cervical root lesion. Dr. Shah asserted that appellant had left-sided cervical left
radiculopathy and weakness due to cervical disc herniation on MRI scan at C5-6 and C-7, with
foraminal compromise. He further opined that a left shoulder MRI scan showed a probable left
rotator cuff tear. Dr. Shah stated that these injuries were causally related to the June 3, 2011
incident.
By decision dated July 30, 2012, an OWCP hearing representative modified the
February 8, 2012 decision in part, finding that appellant established that he experienced pain in
his neck, left shoulder and left arm while placing mail into a mailbox on June 3, 2011. It found,
however, that he failed to submit sufficient medical evidence to establish that he sustained a
diagnosed condition causally related to the June 3, 2011 work incident. .
In a report dated August 10, 2012, Dr. Shah indicated that appellant was experiencing
intermittent pain and numbness in his neck and both shoulders. He advised that appellant had
recently undergone an MRI scan, which showed that his symptoms had worsened since his
previous visit. Dr. Shah rated appellant’s pain as a 6 on a scale of 1 to 10; appellant described
his pain as aching and tingling in nature and stated that it was aggravated by typing or writing.
He advised that this pain was associated with weakness in the bilateral arms and shoulders and
with numbness in the right shoulder. Dr. Shah stated that appellant had cervical neck pain, his
primary symptom, cervical neck pain, cervical neck strain and cervical radiculopathy.
Dr. Shah advised that appellant still had left shoulder and left arm pain causally related to
the injury of June 3, 2011. He related that, prior to this injury, appellant had denied having these
2

particular symptoms. Dr. Shah opined that the mechanism of injury was consistent with the
injuries sustained, including cervical herniation and radiculopathy. He advised that appellant’s
injury had occurred while he had the heavy mailbag over his left shoulder and turned acutely to
the right to walk away; at that time, appellant developed a severe headache and experienced pain
down his left side. Dr. Shah advised that appellant would benefit from a gradual return to work,
particularly with the use of a mail pushcart. He stated that appellant had worsening left shoulder
and left arm pain with radiation; the left shoulder pain was constant and was associated with
weakness and numbness in his left arm. Dr. Shah reiterated his previous diagnoses.
In an October 17, 2012 report, Dr. Thomas K. Bills, Board-certified in orthopedic
surgery, stated that appellant had complaints of bilateral shoulder, elbow and wrist pain. He
advised that there was no obvious atrophy of the left shoulder in comparison to the right
shoulder. Dr. Bills stated that appellant had tenderness in his left rotator cuff, with a positive
impingement sign. He found that the March 5, 2012 left shoulder MRI scan demonstrated
acromioclavicular arthritis; a glenoid labral tear both anteriorly and posteriorly with a secondary
ganglion cyst and an attenuation of the rotator cuff in the impingement zone and watershed zone
without full thickness tear. Dr. Bills also stated that the cervical March 5, 2012 MRI scan
showed diffuse spondylitic changes with degenerative disc changes at C2-3, C3-4, C4-5, C5-6,
C6-7 and C7-T1. He asserted that appellant had facet arthropathy at the same multiple levels, all
of which was causing foraminal stenosis at multiple levels, including C5-6 and C6-7.
Dr. Bills opined that appellant’s primary problem was rotator cuff tendinitis secondary to
impingement. He also diagnosed secondary cervical spondylitis, which caused some cervical
radiculopathy. Dr. Bills prescribed cortisone injections and physical therapy for the left shoulder
and advised that appellant might eventually require surgery for his left shoulder condition.
By decision dated February 13, 2013, OWCP denied modification of the February 8,
2012 hearing representative’s decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 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.3 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.4

2

5 U.S.C. §§ 8101-8193.

3

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

4

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

3

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place and in the manner alleged.5 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.6
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
It is uncontested that appellant experienced pain in his neck, left shoulder and left arm
while placing mail into a mailbox on June 3, 2011. The question of whether an employment
incident caused a personal injury can only be established by probative medical evidence.9
Appellant has not submitted rationalized, probative medical evidence to establish that the June 3,
2011 employment incident caused a personal injury and that the work accident would have been
competent to cause the claimed injury.
Appellant submitted reports from Drs. Shah and Bill. These physicians submitted reports
which stated findings on examination, diagnosed cervical radiculopathy, cervical herniation, leftsided rotator cuff tendinitis, left-sided rotator cuff tear and left-sided impingement syndrome of
the left shoulder and generally related appellant’s cervical, left shoulder and left arm conditions
to the June 3, 2011 work incident. Neither of these physicians, however, provided a probative,
rationalized opinion regarding whether the June 3, 2011 work incident caused a personal injury.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.10 With regard to appellant’s left shoulder condition, appellant
provided diagnoses of left-sided rotator cuff tear and left-sided impingement syndrome of the left
5

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

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(ee).

7

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

8

Id.

9

Carlone, supra note 5.

10

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

4

shoulder. He, however, did not submit a report from a physician which related these diagnoses
to appellant’s left shoulder conditions and sufficiently address how these diagnosed conditions
were causally related to the June 3, 2011 work incident.
Dr. Shah stated in his July 9, 2012 report that a left shoulder MRI scan showed a
probable left rotator cuff tear. He indicated that this injury was causally related to the June 3,
2011 incident. In his report dated August 10, 2012, Dr. Shah advised that appellant was
experiencing intermittent pain and numbness in his left shoulders. He stated that appellant had
recently undergone an MRI scan, which showed that his symptoms had worsened since his
previous visit. Dr. Shah rated appellant’s pain as a 6 on a scale of 1 to 10; appellant described
his pain as aching and tingling in nature and stated that it was aggravated by typing or writing.
He advised that this pain was associated with weakness in pain in his arms and shoulders.
Dr. Shah advised that appellant still had left shoulder and arm pain causally related to the injury
of June 3, 2011. He related that, prior to this injury, appellant had denied having these particular
symptoms. Dr. Shah opined that the mechanism of injury was consistent with the injuries he
sustained. He advised that appellant’s injury occurred while he had the heavy mailbag over his
left shoulder and then suddenly turned to the right to walk away; at that time, he developed a
severe headache and experienced pain down his left side. Dr. Shah stated that appellant had
worsening left shoulder and left arm pain with radiation; the left shoulder pain was constant and
was associated with weakness and numbness in his left arm. In his October 17, 2012 report, he
stated that appellant had complaints of bilateral shoulder, elbow and wrist pain; he noted on
examination that there was no obvious atrophy of the left shoulder in comparison to the right
shoulder.
Dr. Bills asserted that appellant had tenderness in his left rotator cuff, with a positive
impingement sign; he opined that appellant’s primary problem was rotator cuff tendinitis
secondary to impingement. He found that the March 5, 2012 left shoulder MRI scan
demonstrated acromioclavicular arthritis; a glenoid labral tear both anteriorly and posteriorly
with a secondary ganglion cyst and an attenuation of the rotator cuff in the impingement zone
and watershed zone without full thickness tear. Dr. Bills indicated that appellant might
eventually need surgery to ameliorate his left shoulder condition. He, however, did not state an
opinion as to whether these diagnosed left shoulder conditions were causally related to the
June 3, 2011 work incident.
The medical reports from Drs. Shahs and Bills did not sufficiently explain how medically
appellant would have sustained a left shoulder or left arm injury while delivering mail on
June 3, 2011. The reports from Drs. Shah and Bills did not adequately describe appellant’s
accident or how the accident would have been competent to cause the claimed condition. There
is, therefore, no rationalized evidence in the record that appellant’s left shoulder and left arm
injuries were work related.
As to the claimed cervical injury, Dr. Shah indicated that appellant had sustained a
cervical neck strain and cervical radiculopathy. He advised that the mechanism of injury which
occurred on June 3, 2011 was consistent with the cervical herniation and cervical radiculopathy
he sustained. Dr. Shah explained that appellant’s injury had occurred while he had the heavy
mailbag over his left shoulder and turned acutely to the right to walk away. His opinion
regarding causal relationship is of limited probative value, however, in that he did not provide

5

adequate medical rationale in support of his conclusions.11 Dr. Shah’s reports do not constitute
sufficient medical evidence demonstrating a causal connection between appellant’s June 3, 2011
work incident and his claimed cervical condition. Causal relationship must be established by
rationalized medical opinion evidence. The reports from Dr. Shah are of limited probative value
for the further reason that if they are generalized in nature and equivocal in that he only noted
summarily that appellant’s cervical condition was causally related to the June 3, 2011 incident in
which appellant experienced cervical pain while placing mail into a mailbox.
Dr. Bills stated in his October 17, 2012 report that the cervical March 5, 2012 MRI scan
showed diffuse spondylitic changes with degenerative disc changes at C2-3, C3-4, C4-5, C5-6,
C6-7 and C7-T1. He asserted that appellant had facet arthropathy at the same multiple levels, all
of which was causing foraminal stenosis at multiple levels, including C5-6 and C6-7. However,
the March 5, 2012 MRI scan indicates that appellant had multilevel disc pathology essentially
unchanged from his previous diagnostic test, with no significant new disc pathology noted. In
addition, Dr. Bills did not provide an opinion stating that appellant’s diagnosed cervical
conditions were causally related to the June 3, 2011 work incident.
Appellant’s attorney argues on appeal that Dr. Shah’s reports were sufficiently wellrationalized to establish a causal relationship between the June 3, 2011 work incident and his
claimed neck and left shoulder conditions. The Board does not accept counsel’s contention. As
discussed above the reports from Dr. Shah did not constitute probative, rationalized medical
opinion evidence required to establish causal relationship.
Accordingly, appellant failed to provide a medical report from a physician that explains
how the work incident of June 3, 2011 caused or contributed to the claimed injuries to his neck,
left shoulder or left arm injuries. OWCP advised appellant of the evidence required to establish
his claim; however, appellant failed to submit such evidence. Appellant did not provide a
medical opinion which describes or explains the medical process through which the June 3, 2011
work accident would have caused the claimed injuries. Accordingly, he did not establish that he
sustained his neck, left shoulder and left arm injuries in the performance of duty. OWCP properly
denied appellant’s claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained neck, left shoulder
or left arm injuries in the performance of duty on June 3, 2011.

11

William C. Thomas, 45 ECAB 591 (1994).

6

ORDER
IT IS HEREBY ORDERED THAT the February 13, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, WALNUT HILL POST
OFFICE, Petersburg, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1272
Issued: January 20, 2011

Case Submitted on the Record

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

JURISDICTION
On April 6, 2010 appellant, through counsel, filed a timely appeal of the March 11, 2010
merit decision of the Office of Workers’ Compensation Programs denying his recurrence of
disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a recurrence of disability
commencing September 11, 2008 causally related to his accepted employment injury.
On appeal, counsel contends that the Office’s decision is contrary to fact and law.
FACTUAL HISTORY
On May 19, 2005 appellant, then a 45-year-old letter carrier, filed an occupational disease
claim alleging that on May 14, 2005 he first became aware of his lower back pain and realized
that his condition was caused by constant bending, lifting, carrying mail and participating in a
food drive while working at the employing establishment. He stopped work on May 19, 2005.

On August 22, 2005 the Office accepted appellant’s claim for lumbar sprain/strain. Appellant
returned to light-duty work.
On September 17, 2008 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period September 11 through 23, 2008. In medical reports dated September 16, 2008,
Dr. Eric G. Dawson, an attending orthopedic surgeon, noted appellant’s continuing back
symptoms. He listed his findings on physical examination and diagnosed lumbar discopathy,
modest neurosensory ventral root impingement and increased spasm with loss of general range
of motion of the lumbar spine. Dr. Dawson advised that appellant’s lumbar discopathy was due
to the accepted employment-related condition.
By letter dated October 1, 2008, the Office requested that appellant submit factual and
medical evidence, including a rationalized medical opinion from an attending physician
explaining how his current condition was causally related to the accepted condition.
In an October 3, 2008 letter, appellant advised that his light-duty work did not change or
become more demanding. In an October 3, 2008 report, Dr. Dawson advised that appellant’s
current lumbar spine condition was largely the result of overuse that was precipitated by the
accepted condition. He clearly had the medical stigmata or signs of such injury which according
to a community standard of care may result in exacerbations even without significant change.
Also on October 3, 2008 Dr. Dawson noted appellant’s complaints of pain, spasm, stiffness,
numbness and tingling in the lower back area with loss of range of motion. Appellant’s modified
work duties had not changed. On physical examination, Dr. Dawson found no major nerve
impingement other than neurosensory dorsal at L5 which was ordinary and understood to be the
case with such injuries. Appellant had lumbosacral myofascitis with increased muscle tone and
spasm. There was moderate tenderness at L4-5 and L5-S1 when sheer forces were applied. In
an October 15, 2008 report, Dr. Dawson noted that appellant had significant aggravation and
exacerbation of the lumbar spine. Significant spasm was present. Appellant had apparently
exceeded his work restrictions. On physical examination, Dr. Dawson found no major motor
deficit, but reported soft touch neurosensory deficit at L5. He placed appellant on rest through
October 17, 2008. In an October 17, 2008 report, Dr. Dawson noted appellant’s continuing pain,
spasm and stiffness of the lower back. He advised that appellant had downward going plantar
responses with trace motor deficit. Dr. Dawson recommended three additional days of rest. In
an October 21, 2008 report, he indicated with an affirmative mark that appellant had lumbar
discopathy and sacroiliac sprain that were caused or aggravated by the accepted condition.
Dr. Dawson was totally disabled from October 15 through 22, 2008. On October 29, 2009 he
stated that appellant’s accepted condition was incorrect. Dr. Dawson advised that appellant had
lumbar discopathy, some signs of local nerve impingement, but no severe motor or nerve
impingement based on his physical examination findings and the results of a July 2007 magnetic
resonance imaging (MRI) scan. Appellant could perform his work duties with physical
restrictions previously established by Dr. Dawson.
In disability certificates dated April 10, 2006 to March 16, 2007, Dr. Cyrus V. Parsey, a
family practitioner and Board-certified pathologist, advised that appellant had low back pain.
Appellant was totally disabled for work on intermittent dates during the stated period.

2

In an April 10, 2006 report, Dr. Sydney J. Pion, a Board-certified radiologist, reviewed
the results of an MRI scan of appellant’s lumbar spine and stated that there was no significant
radiologic abnormality.
By decisions dated November 17 and 19, 2008, the Office denied appellant’s recurrence
of disability claim. It found the evidence to be insufficient to establish that his total disability
commencing September 11, 2008 was due to his accepted condition.
On January 9, 2009 appellant requested reconsideration of the Office’s November 17,
2008 decision. He submitted a claim (Form CA-2a) alleging that he sustained a recurrence of
disability on May 8, 2007. Appellant stopped work on September 11, 2008. He stated that,
following the accepted injury, he could not perform his usual work duties. Appellant was
restricted from bending, pushing, stooping and twisting. He experienced pain, stiffness,
occasional weakness in his back and legs. Appellant contended that there was a causal
relationship between his current condition and his accepted condition as walking, stooping,
pushing and reaching aggravated and worsened his accepted condition.
In reports dated January 7, 2008 to March 20, 2009, Dr. Dawson noted appellant’s back
and right leg symptoms. He listed his findings on physical examination and reviewed the results
of a lumbar MRI scan. Dr. Dawson advised that appellant had cervical strain, dorsal myofascitis,
contusion to the left hand and wrist with possible carpal tunnel syndrome and lumbar myofascitis
and sprain with possible annular discopathy. In the December 23, 2008 report, he opined that
appellant continued to suffer from residuals of his accepted condition and that he required
continued physical restrictions. In a January 7, 2009 report, Dr. Dawson advised that appellant
had a lumbar dorsal nerve root at L5 that was caused or aggravated by the accepted condition.
Also, on January 7, 2009 he advised that appellant sustained a back injury and he was totally
disabled for work through January 8, 2009. Appellant could return to work on January 9, 2009.
By decision dated April 27, 2009, the Office denied modification of the November 17,
2008 decision. The evidence submitted by appellant was found insufficient to establish that he
sustained a recurrence of disability commencing September 11, 2008 due to his accepted
condition.
On December 8, 2009 appellant, through counsel, requested reconsideration. In reports
dated May 1, 2009 through January 25, 2010, Dr. Dawson reiterated his diagnoses of lumbar
discopathy with neural radiculopathy dorsal and impingement at L5. He placed appellant on rest
commencing retroactively from April 29 through May 4, 2009. Appellant was released to return
to his previous light-duty work on May 6, September 16 and November 19, 2009. On
January 25, 2010 Dr. Dawson noted that appellant was working beyond his restrictions. He
placed appellant on rest through January 30, 2010. Dr. Dawson advised that appellant could
return to work on February 1, 2010.
In an October 1, 2009 report, Dr. Daniel R. Ignacio, a Board-certified physiatrist, advised
that an electromyogram of appellant’s lumbar spine revealed right L5 radiculopathy. Also on
October 1, 2009 he obtained a history of the accepted condition and noted appellant’s back and
lower extremity symptoms. Dr. Ignacio listed his findings on physical and diagnostic testing.

3

He advised that appellant had lumbar disc syndrome and radiculopathy and chronic pain
syndrome.
In a March 11, 2010 decision, the Office denied modification of the April 27, 2009
decision. The evidence submitted by appellant was insufficient to establish that he sustained a
recurrence of disability commencing September 11, 2008 due to his employment-related injury.1
LEGAL PRECEDENT
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition, which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment, which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.2
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that he can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that he cannot perform such limited-duty work. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the limited-duty job requirements.3
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.4
ANALYSIS
The Office accepted that appellant sustained lumbar sprain/strain while in the
performance of duty.
Appellant claimed a recurrence of disability commencing
September 11, 2008. He must demonstrate either that his condition has changed such that he
1

Following the issuance of the Office’s March 11, 2010 decision, the Office received additional evidence. The
Board may not consider evidence for the first time on appeal which was not before the Office at the time it issued
the final decision in the case. 20 C.F.R. § 501.2(c). Appellant may resubmit this evidence and legal contentions to
the Office accompanied by a formal written request for reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
2

20 C.F.R. § 10.5(x).

3

Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986).

4

James H. Botts, 50 ECAB 265 (1999).

4

could not perform the activities required by his modified job or that the requirements of the
limited light-duty jobs changed. The Board finds that the record contains no evidence that the
limited light-duty job requirements were changed or withdrawn or that appellant’s employmentrelated condition has changed such that it precluded him from performing limited light-duty
work.
Dr. Dawson’s reports found that appellant had several lumbar conditions that were
causally related to the accepted condition. He opined that appellant was totally disabled for work
on intermittent dates from October 15, 2008 through January 30, 2010. However, Dr. Dawson
did not adequately explain how the diagnosed conditions and appellant’s claimed recurrence of
disability commencing September 11, 2008 were caused or contributed to by the accepted
employment-related lumbar sprain/strain.5 The Board finds that his reports are insufficient to
establish appellant’s claim.
Dr. Parsey’s disability certificates found that appellant was totally disabled from
April 10, 2006 to March 16, 2007. This evidence predates the alleged recurrence of disability
commencing September 11, 2008 and is not relevant to the issue of whether his current back
condition and disability are due to the accepted condition.
Dr. Pion’s diagnostic test report found that appellant had no significant radiologic
abnormality. This evidence failed to provide an opinion on causal relationship between the
claimed period of disability and the accepted condition. The Board has held that a physician’s
opinion, which does not address causal relationship is of diminished probative value.6 The
Board finds, therefore, that Dr. Pion’s report is insufficient to establish appellant’s claim.
Similarly, Dr. Ignacio’s diagnostic test report is insufficient to establish appellant’s claim.
While he addressed appellant’s lumbar conditions, he failed to address how these conditions and
appellant’s claimed recurrence of disability were causally related to the accepted condition.7 The
Board finds that Dr. Ignacio’s report is insufficient to establish appellant’s claim.
Appellant has not met his burden of proof in establishing that there was a change in the
nature or extent of the injury-related conditions or a change in the nature and extent of the
limited light-duty requirements, which would prohibit him from performing the limited lightduty positions he assumed after he returned to work.

5

See Gloria J. McPherson, 51 ECAB 441 (2000) (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).
6

See A.D., 58 ECAB 149 (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).
7

Id.

5

CONCLUSION
The Board finds that appellant has failed to establish that he sustained a recurrence of
disability commencing September 11, 2008 causally related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 11, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 20, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
W.O., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Palm Desert, CA, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 16-1502
Issued: March 10, 2017

Case Submitted on the Record

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

JURISDICTION
On July 14, 2016 appellant filed a timely appeal from a June 30, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a right shoulder
condition causally related to a May 19, 2016 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The record includes additional evidence received after OWCP rendered its June 30, 2016 decision. The Board’s
jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On May 20, 2016 appellant, then a 62-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 19, 2016 he was setting the handbrake in his work vehicle
when he “tweaked” his right shoulder, and experienced “sharp pain.” He did not stop work.
In a May 20, 2016 duty status report (Form CA-17), Dr. Marion R. Windham, a Boardcertified family practitioner, noted a diagnosis of right shoulder sprain with a May 19, 2016 date
of injury. The reported history of injury was “setting parking brake.” According to
Dr. Windham, appellant was able to work as of May 20, 2015 with restrictions of no use of the
right arm.
In a letter dated May 27, 2016, OWCP informed appellant of the type of evidence needed
to support his claim and requested that he submit such evidence within 30 days.
OWCP subsequently received a May 20, 2016 work progress and status report and a
doctor’s first report of occupational injury or illness from Dr. Windham. Dr. Windham noted
that appellant sprained his right shoulder setting the parking brake on May 19, 2016. He related
that the handbrake tension was hard to set and that appellant’s right shoulder “twinged” with
pain and worsened through the night. A right shoulder x-ray reportedly revealed no significant
abnormalities. Dr. Windham diagnosed right shoulder sprain and checked the box marked “yes”
in response to the question of whether the findings and diagnosis were consistent with
appellant’s account of injury. He recommended a return to work with restrictions of no right arm
use. Dr. Windham also recommended physical therapy and advised appellant to return for
follow-up on May 27, 2016.
OWCP also received May 27, 2016 progress notes and a duty status report (Form CA-17)
from, Craig N. Estes, a physician assistant.
Dr. Michael Mostyn, a Board-certified internist, examined appellant on June 3, 2016 and
diagnosed right shoulder strain. He noted a May 19, 2016 date of injury. Dr. Mostyn reported
that appellant was feeling better, but there was some tightness on reaching across his chest. He
advised that appellant could immediately return to regular work activities without restrictions.
Dr. Mostyn saw appellant for follow up on June 9, 2016 and indicated that appellant was
discharged and released from care.
By decision dated June 30, 2016, OWCP denied appellant’s claim, finding that he failed
to establish causal relationship between the May 19, 2016 employment incident and the
diagnosed right shoulder condition.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,

2

including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.3
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP begins with an analysis of whether “fact of injury” has been established. Generally,
fact of injury consists of two components that must be considered in conjunction with one
another. The first component is whether the employee actually experienced the employment
incident that allegedly occurred.4 The second component is whether the employment incident
caused a personal injury.5 An employee may establish that an injury occurred in the performance
of duty as alleged, but fail to establish that the disability or specific condition for which
compensation is being claimed is causally related to the injury.6
To establish a causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background supporting such a causal
relationship.7 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.8 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.9 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.10
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.11

3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
6

Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

8

D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 5.

10

V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).

11

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

3

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.12
ANALYSIS
OWCP accepted that the May 19, 2016 employment incident occurred as alleged and that
appellant received a contemporaneous medical diagnosis with respect to his right upper
extremity. However, it denied his traumatic injury claim on the basis that the medical evidence
was insufficient to establish causal relationship between the diagnosed right shoulder sprain and
the accepted employment incident. The Board finds that appellant failed to establish causal
relationship.
Dr. Windham examined appellant on May 20, 2016 and diagnosed right shoulder strain.
He noted a May 19, 2016 date of injury, which appellant described as “parking vehicle and
setting handbrake.” Appellant reported that he felt a twinge in his right shoulder with pain that
worsened through the night. On the form report, Dr. Windham checked a box marked “yes” in
response to the question of whether the findings and diagnosis were consistent with appellant’s
account of injury. He did not elaborate. The Board has consistently held that merely checking a
box marked “yes” on a form report, without not more by way of rationale, will not suffice for
purposes of establishing causal relationship.13
When appellant returned for follow up on May 27, 2016, he was seen by Mr. Estes, a
physician assistant. Because Mr. Estes is not considered a physician as defined under FECA, his
May 27, 2016 findings are of no probative value, and are therefore insufficient to establish
entitlement to FECA benefits.14
Dr. Mostyn examined appellant on June 3, 2016 and diagnosed right shoulder strain.
Although he identified May 19, 2016 as the date of injury, he did not explain how setting the
handbrake either caused or contributed to appellant’s right shoulder strain. Dr. Mostyn’s June 9,
2016 follow-up report similarly fails to explain the relationship between appellant’s right
shoulder condition and the May 19, 2016 employment incident. A physician’s opinion on causal
relationship must be expressed in terms of a reasonable degree of medical certainty, and must be
supported by medical rationale, explaining the nature of the relationship between the diagnosed
condition and appellant’s specific employment factor(s).15
Because the medical reports submitted by appellant do not sufficiently address how the
May 19, 2016 employment incident either caused or aggravated a right shoulder condition, these
12

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a
physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).
13

See D.D., 57 ECAB 734, 739 (2006); Deborah L. Beatty, 54 ECAB 340, 341 (2003).

14

See supra note 8.

15

See W.H., Docket No. 16-1483 (issued January 30, 2017); supra note 4.

4

reports are of limited probative value, and thus, insufficient to establish entitlement under
FECA.16 Accordingly, the Board finds that appellant failed to meet his burden of proof to
establish his traumatic injury claim.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish a right
shoulder condition causally related to the May 19, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 30, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2017
Washington, DC

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

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

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

16

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-2073
Issued: August 6, 2010

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 August 11, 2009 appellant filed a timely appeal from the May 27, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs that denied her reconsideration
request. As the most recent merit decision was issued by the Office on March 4, 2004, the Board
lacks jurisdiction to review the merits of this case pursuant to 20 C.F.R. §§ 501.2 and 501.3.1
ISSUE
The issue is whether the Office properly determined that appellant’s reconsideration
request was not timely filed and failed to establish clear evidence of error.

1

For Office decisions issued on or after November 19, 2008, a claimant has 180 days to file an appeal with the
Board. 20 C.F.R. § 501.3(e) (2008); 73 Fed. Reg. 62,190 (October 20, 2008). For decisions issued before
November 19, 2008, a claimant had one year to file an appeal. See 20 C.F.R. § 501.3(d)(2).

FACTUAL HISTORY
This case has previously been before the Board.2 In an April 22, 2008 decision, the
Board affirmed decisions of the Office, which granted appellant a schedule award for 20 percent
impairment of her right arm and found an overpayment of compensation in the amount of
$5,115.24, for which it denied waiver. The facts of the case as set forth in the Board’s prior
decision are incorporated herein by reference.
The record reflects that, in May 2001, Dr. Samuel J. Chmell, appellant’s attending Boardcertified orthopedic surgeon, had recommended that the Office approve arthroscopic surgery of
her right knee. The Office developed the issue of causal relation and need for right knee surgery
by referring appellant to Dr. Julie M. Wehner, a Board-certified orthopedic surgeon, for a second
opinion. On October 3, 2001 Dr. Wehner reviewed diagnostic tests of both knees and advised
that arthroscopic surgery of the right knee would not benefit appellant. The Office found a
conflict in medical opinion between Dr. Chmell and Dr. Wehner as to the need for surgery and
referred her to Dr. John J. Dwyer, a Board-certified orthopedic surgeon, for an impartial medical
examination. In a March 11, 2002 report, Dr. Dwyer listed findings on examination of
appellant’s right knee and reviewed a May 9, 2001 magnetic resonance imaging (MRI) scan of
the knee. He advised that the findings were not clinically significant and that her complaints
were not related to the soft tissue injuries sustained in the December 5, 2000 fall at work.
Dr. Dwyer found that the accepted injury did not give rise to the need for the proposed right knee
surgery.
In an April 3, 2002 decision, the Office denied appellant’s request for right knee
arthroscopic surgery. It found that the weight of medical evidence was represented by the report
of Dr. Dwyer, the impartial medical specialist.
Appellant requested a review of the written record and submitted the April 15, 2002
report of Dr. Joseph G. Thometz, a Board-certified orthopedic surgeon, who diagnosed bilateral
knee contusions that remained symptomatic with an effusion of the right knee. Dr. Thometz
recommended arthroscopic surgery. On April 25, 2002 appellant was treated by Dr. Charles T.
Chen, a Board-certified orthopedic surgeon, who also advised that right knee arthroscopic
surgery was a reasonable treatment option. Dr. Chen noted that he did not believe that
appellant’s condition was aggravated by the work injury.
In an October 30, 2002 decision, an Office hearing representative affirmed the April 3,
2002 decision. He found that the weight of medical opinion was represented by the impartial
opinion of Dr. Dwyer.
On December 3, 2002 appellant requested reconsideration. She submitted the May 25
and November 26, 2002 report of Dr. Chmell, who diagnosed traumatic aggravation of
degenerative arthritis to both knees with internal derangement of the right knee. Dr. Chmell
reiterated his recommendation for surgery and advised that appellant’s right knee condition
continued to deteriorate.
2

Docket No. 07-1164 (issued April 22, 2008). Appellant sustained injuries on December 5, 2000. The Office
accepted contusions of the right elbow, scalp and left knee and a fractured right elbow.

2

In a February 25, 2003 decision, the Office denied appellant’s request for
reconsideration, finding that the evidence submitted was insufficient to warrant further merit
review.
On May 7, 2003 appellant requested reconsideration and submitted additional medical
evidence.
In a March 4, 2004 decision, the Office reviewed the merits of appellant’s claim but
denied modification of its prior decisions. The weight of medical opinion as to the need for right
knee surgery was accorded to Dr. Dwyer.
On March 21, 2005 appellant requested reconsideration. She submitted additional
treatment records from Dr. Chmell dated February 21 to October 24, 2005. Dr. Chmell noted
appellant’s continued complaint of right knee pain with associated swelling. He diagnosed
traumatic derangement of the right knee and recommended arthroscopic surgery with
debridement and a partial medial meniscectomy.
In a November 25, 2005 decision, the Office denied appellant’s request for
reconsideration on the grounds that her letter did not raise a substantive legal question or
included new and relevant evidence and was insufficient to warrant further review of the merits.
In letters dated January 16 and February 13, 2007, February 10, 2008 and May 31, 2009,
appellant requested reconsideration.3 She submitted emergency room records from December 5,
2000, additional treatment records from Dr. Thometz dated April 15, 2002 and Dr. Chen dated
from April 25, 2002 and a right knee x-ray of October 21, 2003, all previously of record.
Appellant submitted copies of additional diagnostic tests including x-rays and scans obtained
August 31, 2006 to February 19, 2009. Dr. Chmell repeated the diagnoses of traumatic arthritis
with internal derangement to both knees, traumatic arthritis of the right elbow and internal
derangement of the left ankle with tendinitis. He noted that appellant walked with a prominent
limp, used a cane and had effusion of the right knee with tenderness over the medial femoral
condyle. A February 19, 2009 MRI scan of the right knee revealed a tear of the medial
meniscus, degenerative changes of the patella and femoral condyles, small joint effusion and
multiloculated ganglion cyst. Dr. Chmell diagnosed worsening traumatic arthritis of the right
knee with a torn meniscus and recommended arthroscopic surgery.
In a May 27, 2009 decision, the Office denied appellant’s reconsideration request finding
that it was not timely filed and did not establish clear evidence of error in the denial of her
request for right knee surgery.

3

Appellant filed a July 17, 2006 revised Form CA-1, requesting that her claim be accepted for other physical
conditions.

3

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office 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.”4
The Office, 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(a)
provides that the Office will not review a decision unless the application for review is filed
within one year of the date of that decision.5 However, the Office will reopen a claimant’s case
for merit review, notwithstanding the one-year filing limitation, if the claimant’s application for
review shows clear evidence of error on the part of the Office in its most recent merit decision.
To establish clear evidence of error, a claimant must submit evidence relevant to the issue that
was decided by the Office. The evidence must be positive, precise and explicit and must be
manifested on its face that the Office committed an error.6
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office’s decision.7 Evidence that
does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.8 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.9 This entails a limited
review by the Office of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of the Office in the denial of the claim.10 The Board makes
an independent determination as to whether a claimant has submitted clear evidence of error on
the part of the Office.11
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998).

6

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

7

Annie L. Billingsley, supra note 5.

8

Jimmy L. Day, 48 ECAB 652 (1997).

9

Id.

10

Id.

11

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

4

ANALYSIS
In its May 27, 2009 decision, the Office properly determined that appellant failed to file a
timely application for review. The most recent merit decision on her claim concerning her
request for right knee surgery was issued on March 4, 2004. Appellant’s requests for
reconsideration dated on and after January 16, 2007 were more than one year after
March 4, 2004. Therefore, her reconsideration requests were not timely filed.12
The Board finds that appellant did not submit sufficient evidence with her requests to
establish clear evidence of error in the Office’s decisions denying her request for authorization of
right knee surgery. Appellant submitted various treatment records and diagnostic studies
obtained by Dr. Thometz, Dr. Chen and Dr. Chmell dated from December 5, 2000 to
October 21, 2003. However, the Office had previously considered this evidence prior to issuing
the March 4, 2004 merit decision. By resubmitting these documents to the record, appellant did
not submit evidence sufficient to manifest on its face that the Office had erred in denying surgery
as was requested. In denying her request, the Office had relied upon the opinion of an impartial
medical specialist. The resubmission of the documents already of record does not raise a
substantial question as to the correctness of the Office’s decision.
Appellant submitted additional diagnostic studies dated August 31, 2006 to
February 19, 2009. However, these reports do not provide any opinion on the underlying issue
in this case, whether the requested arthroscopic surgery of the right knee was employment
related. This evidence is not sufficient to raise a substantial question as to the correctness of the
Office’s decision or to establish clear error in the denial of surgery authorization.
Appellant submitted multiple treatment records from Dr. Chmell dated October 23, 2006
to December 13, 2008. Dr. Chmell reiterated his diagnosis of traumatic arthritis to both knees
with internal derangement and the need that she undergo right knee arthroscopic surgery. This
evidence does not raise a substantial question as to the correctness of the Office’s decision.
Dr. Chmell merely reiterated his prior opinion that appellant undergo surgery to the right knee, a
matter that was developed by the Office and for which Dr. Dwyer provided an impartial medical
opinion. His additional reports do not provide any additional explanation or expand on his prior
opinion relating the need for surgery to her accepted injury. Dr. Chmell noted findings on
examination and recommended arthroscopic surgery for the right knee. The Board notes that
Dr. Chmell was previously on one side of a medical conflict that was resolved by Dr. Dwyer
regarding the need for surgery.13 The Board has held that the term “clear evidence of error” is
intended to represent a difficult standard. The submission of a detailed well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical
opinion requiring further development, does not establish clear error in the Office’s denial of

12

The Board notes that the Office treated appellant’s revised CA-1 claim form received July 17, 2006 as a
reconsideration request.
13

See Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992) (report of a physician who was on one side of a
medical conflict that was resolved by an impartial specialist is generally insufficient to create a new conflict).

5

surgery.14 This evidence does not raise a substantial question as to the correctness of the
Office’s decisions.
The Board finds that the medical evidence submitted by appellant does not raise a
substantial question as to the correctness of the Office’s decision to deny authorization for right
knee surgery. Appellant has not provided argument or evidence of such probative value as to
shift the weight of the medical evidence in her favor.
On appeal, appellant alleges that she filed her reconsideration request in a timely manner;
however, as noted, there is no evidence that a reconsideration request was received by the Office
within one year of March 4, 2004. As to the weight of the medical evidence, she alleged that a
physician confused her with another patient. The Board’s review of the medical evidence does
no establish this contention as factually established. As noted, appellant has not provided
evidence or argument of sufficient value to shift the weight of the evidence in her favor or to
raise a substantial question as to the correctness of the Office’s decision.
CONCLUSION
The Board finds that appellant’s request for reconsideration dated July 17, 2006 was
untimely filed and did not demonstrate clear evidence of error.15

14

D.G., 59 ECAB ___ (Docket No. 08-137, issued April 14, 2008).

15

The Board notes that, on July 27, 2009, the Office denied modification of decision’s denying appellant’s claim
for an increased schedule award. Appellant did not appeal this decision to the Board.

6

ORDER
IT IS HEREBY ORDERED THAT the May 27, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 6, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7