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

)
)
)
)
)
)
)
)

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

Docket No. 16-0416
Issued: May 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 4, 2016 appellant, through counsel, filed a timely appeal of a December 2,
2015 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 sustained a left arm, shoulder, or neck condition due to
factors of his federal employment.
FACTUAL HISTORY
Appellant, then a 54-year-old rural mail carrier, filed an occupational disease claim, Form
CA-2, alleging that he became aware of tightness and pain in his left arm, shoulder, and neck on
June 15, 2014 and that he realized his condition was caused by factors of his employment on
June 25, 2014. He stopped work on June 24, 2014.

1

5 U.S.C. § 8101 et seq.

OWCP received a June 24, 2014 work restriction form from Dr. John M. Conner, a
Board-certified orthopedic surgeon, which noted that appellant had been placed on light duty
from June 24 to July 25, 2014, with lifting restrictions of the left arm.
By letter dated July 17, 2014, OWCP advised appellant that the evidence received was
insufficient to establish his claim. Appellant was advised that he should submit medical
evidence from his treating physician which provided a diagnosis of his condition, and a
rationalized medical opinion as to how the diagnosed condition was causally related to factors of
his federal employment. He was afforded 30 days to submit this evidence.
In a form report dated July 17, 2014, Dr. Rodrigo Moreno, a specialist in hand surgery,
noted appellant’s diagnosis as cervical radiculopathy. He related that appellant could return to
work on that day, but with no use of the left arm.
On August 15, 2014 OWCP received a supplemental statement from appellant in which
he explained his claim. Appellant related that on the morning of June 20, 2014 he experienced
stiffness in the middle of his left arm, near his elbow, while performing preparatory duties. After
he began moving tubs of mail into his vehicle the pain grew stronger, while bending down to
pick up one of the tubs and turning while holding a tub, he heard a pop between his bicep and
elbow in his left arm, and his pain increased. After finishing his route, appellant stated that he
informed his supervisor who asked if he had experienced similar issues. He replied that he had
experienced stiffness in his neck on June 15, 2014.
By decision dated September 17, 2014, OWCP denied appellant’s claim, finding that he
did not sustain an arm, shoulder, or neck condition in the performance of duty. It found that he
did not establish fact of injury as he had not submitted medical evidence that a condition had
been diagnosed in connection resulting from his employment duties.
In a December 11, 2014 report, received by OWCP on January 6, 2015, Dr. Michael J.
Doyle, Board-certified in neurosurgery, noted that appellant had neck pain, left shoulder pain and
left arm pain. He related that appellant was lifting at work when he began to experience
discomfort in his left trapezius, which began to radiate down his arm with numbness and
tingling. Dr. Doyle reported that appellant also developed weakness in his arm, with ongoing
tightness in his trapezius area and shoulder over the past few months. He advised that appellant
underwent an electromyogram (EMG) which indicated mild carpal tunnel and possible
musculocutaneous mononeuropathy. Dr. Doyle reported that he had persistent pain and
expressed concern that appellant might have a cervical disc herniation with C6 radiculopathy; he
opined that his clinical presentation was more consistent with this diagnosis. He recommended
that appellant undergo a cervical magnetic resonance imaging (MRI) scan and prescribed a
course of physical therapy.
In a March 3, 2015 report, Dr. Reggie Lyell, Board-certified in family practice, asserted
that appellant still had numbness and weakness in his left arm, with intermittent pain in his neck.
He advised that he had atrophy in his biceps and numbness in his thumb and index finger in a C6
distribution, with diminished sensation in his C4 dermatome on the left. Dr. Lyell reported that
appellant underwent an MRI scan which showed severe diffuse degenerative disease, severe
stenosis involving the left foramen at C4-6, and broad-based disc protrusion at C6-7. Dr. Lyell
opined, however, that appellant was not really having symptoms of a C7 radiculopathy and
advised that he had full strength in his triceps. He advised that appellant was a complex patient;
2

and the pathology in his cervical spine was probably responsible for a lot of his symptomatology.
Dr. Lyell recommended that appellant should consider surgical intervention in light of his
ongoing symptoms and his fairly severe neurologic deficit. In a December 14, 2014 report,
Dr. Doyle essentially reiterated his previous findings and conclusions.
In a January 16, 2015 report, received by OWCP on September 3, 2015, Dr. Doyle noted
that he found no evidence of preexisting conditions or injuries predating the injury described by
appellant. He reported that appellant had significant neck, right shoulder, and left arm pain.
Dr. Doyle opined that appellant was not capable of performing his regular duties as a rural mail
carrier and would only be able to work in a sedentary occupation at this time. Appellant
submitted numerous other medical reports which constituted new evidence to support his claim
that he had sustained left arm, right shoulder, and neck conditions causally related to
employment factors.
In a February 24, 2015 report, received by OWCP on September 3, 2015, Dr. Moreno
advised that he examined appellant on July 17, 2014 for complaints of weakness in his left upper
extremity. Appellant reported that he was lifting heavy boxes at work on June 20, 2014 and felt
a pop in his left elbow region, and experienced weakness and discomfort afterwards. He further
reported pain in the lateral side of his left arm with weakness in the elbow and wrist, as well as
numbness and tingling in the left thumb, index, and long fingers. Dr. Moreno advised that on
examination appellant’s left upper extremity had full neck range of motion with discomfort
around the shoulder region. He reported that radiographs showed diminished cervical disc space
at the C4-5 and C5-6 levels, which indicated disc degenerative disease at these levels.
Dr. Moreno diagnosed left upper extremity motor weakness and cervical radiculopathy and
recommended that appellant undergo cervical spine MRI scan.
On August 28, 2015 appellant requested reconsideration.
By decision dated December 2, 2015, OWCP found that appellant had established fact of
injury. However, it now denied appellant’s claim, finding that he failed to submit medical
evidence sufficient to establish that he sustained left arm, right shoulder, or neck conditions
causally related to his accepted employment duties.
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

Id.

3

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

4

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

3

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed right shoulder condition and his
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.6
ANALYSIS
The Board affirms OWCP’s finding that appellant has not established a left arm,
shoulder, or neck conditions causally related to the accepted employment duties.
Appellant submitted reports from Drs. Conner, Doyle, Lyell, and Moreno. Dr. Conner
initially placed appellant on light duty on June 24, 2014. He did not provide a diagnosis of any
medical condition and he did not provide any explanation as to why light duty was necessary.
Dr. Doyle noted in his December 11, 2014 report that appellant was experiencing neck pain, left
shoulder pain, and left arm pain and that he also developed weakness in his arm, with ongoing
tightness in his trapezius area and shoulder over the past few months. He advised that appellant
had discomfort in his left trapezius, which began to radiate down his arm with numbness and
tingling.
Dr. Doyle related that appellant had persistent pain and expressed concern that he might
have a cervical disc herniation with C6 radiculopathy. He opined that appellant’s clinical
presentation was more consistent with a herniated disc in the cervical spine. Dr. Doyle
submitted a January 16, 2015 report, in which he found no evidence of preexisting conditions or
injuries predating the injury described by appellant. He reported that appellant had significant
neck, left shoulder, and arm pain and advised that appellant was not capable of performing his
regular duties as a rural mail canter; he was limited to doing sedentary work.

5

Id.

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

In his March 3, 2015 report, Dr. Lyell advised that appellant still had numbness and
weakness in his left arm, with intermittent pain in his neck. He reported that he had atrophy in
his biceps and numbness in his thumb and index finger in a C6 distribution. Dr. Lyell advised
that the results of a cervical spine MRI scan demonstrated severe, diffuse degenerative disease.
He further noted that appellant had severe stenosis involving the left foramen at C4-6 and broadbased disc protrusion at C6-7, but observed, however, that appellant did not really have C7
radiculopathy symptoms and had full strength in his triceps. Dr. Lyell advised that the pathology
in his cervical spine was probably responsible for much of his symptomatology and
recommended that appellant consider surgical intervention to ameliorate his ongoing symptoms
and his fairly severe neurologic deficit.
In his February 24, 2015 report, Dr. Moreno advised that appellant had complaints of
weakness and discomfort in his left upper extremity which he attributed to a June 20, 2014
incident in which he was lifting heavy boxes and felt a pop in his left elbow region. He noted
that appellant felt pain in the lateral side of his left arm with weakness in the elbow and wrist, in
addition to numbness and tingling in the left thumb, index and long fingers. Dr. Moreno noted
that on examination his left upper extremity had full neck range of motion with discomfort
around the shoulder region. He noted that the results of radiographic testing showed diminished
cervical disc space at the C4-5 and C5-6 levels, which demonstrated disc degenerative disease at
these levels. Dr. Moreno diagnosed left upper extremity motor weakness and cervical
radiculopathy and recommended that appellant undergo an additional MRI scan of the cervical
spine.
The reports from Drs. Conner, Doyle, Lyell, and Moreno do not provide a probative,
rationalized medical opinion that appellant had a condition or disability causally related to
employment factors. Their opinions on causal relationship are of limited probative value as they
do not contain any medical rationale explaining how appellant’s diagnosed left arm, shoulder, or
neck conditions were caused by factors of appellant’s employment.7
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.8 The physicians of record did not sufficiently describe
appellant’s job duties and explain the medical process through which such duties would have
been competent to cause the claimed left arm, shoulder, or neck conditions. Their opinions are
of limited probative value as they do not contain any medical rationale explaining how
appellant’s job duties physiologically caused the diagnosed conditions. The medical reports of
record thus did not constitute adequate medical evidence to establish that appellant’s claimed
medical conditions were causally related to his employment.
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

7

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

8

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

5

sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish his claim. Appellant failed
to submit such evidence and therefore he has not met his burden of proof to establish that his
claimed left arm, shoulder, or neck conditions were causally related to his employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that his left arm, shoulder, and neck
conditions are causally related to his accepted employment duties.
ORDER
IT IS HEREBY ORDERED THAT the December 2, 2015 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 11, 2016
Washington, DC

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

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

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

9

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, DARLINGTON
STATION, Pawtucket, RI, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Robert Donahue, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1624
Issued: April 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On July 18, 2014 appellant, through her representative, filed a timely appeal from a
June 23, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on May 2, 2014.
On appeal, appellant asserts that the evidence submitted was sufficient to establish her
claim.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 9, 2014 appellant, then a 51-year-old postal clerk, filed a traumatic injury claim
alleging that she injured her right knee at 7:20 a.m. on May 2, 2014 when she fell while exiting a
vehicle. She claimed to have aggravated previous right knee injuries that had occurred on
June 29, 2012 and March 28, 2013. The employing establishment stated that appellant, whose
regular-duty hours were 9:00 a.m. to 6:00 p.m., was not on the clock when injured and was
coming in to attend a district reasonable accommodation committee (DRAC) meeting.2
In a May 2, 2014 statement, a coworker explained that he had driven appellant to the
employing establishment that day for a meeting. They had arrived at 7:15 a.m. for an 8:00 a.m.
meeting and, as she was exiting the vehicle at 7:20 a.m., she fell. Emergency medical services
(EMS) were called and appellant was transported to a hospital. Appellant submitted a May 2,
2014 statement noting that she was driven to the employing establishment that day for a DRAC
meeting. She stated that she exited the vehicle with the help of her coworker and the use of her
walker. When she began to walk her right knee gave out and she fell to the ground and was
transported to the hospital.
By letter dated May 16, 2014, OWCP informed appellant of the type evidence needed to
support her claim. Appellant was instructed to furnish information regarding the meeting
scheduled at 8:00 a.m., including why she arrived 45 minutes early, and to furnish medical
information regarding the claimed injury. She was also asked to describe the prior injuries that
had occurred on June 29, 2012 and March 28, 2013. In separate correspondence the employing
establishment was asked whether appellant was required to attend the DRAC meeting scheduled
for May 2, 2014 and whether at the time of injury she was engaged in official duties that required
her to be on the employing establishment premises.
In an April 7, 2014 letter, the chairperson of DRAC advised appellant that a meeting
would be held at 8:00 a.m. on Friday, April 18, 2014 to discuss her request for reasonable
accommodation. She was advised that her participation in the process was necessary and she
should be prepared to discuss her medical condition, limitations, and any reasonable
accommodations she believed were appropriate.3
Appellant submitted factual and medical evidence regarding previous claims. This
included reports dated April 1 and May 6, 2013 in which Dr. Michael P. Mariorenzi, an attending
Board-certified orthopedic surgeon, noted a history of injuring her right knee when she tripped
over a tub of mail on June 29, 2012. He diagnosed traumatic patella femoral chondromalacia of
the right knee and advised that appellant was totally disabled. In a September 3, 2013 report,
Dr. Medhat A. Kader, an OWCP referral physician and Board-certified orthopedist, diagnosed
progressive osteoarthritis of the right knee and advised that the condition was not related to
2

Appellant has four additional claims injuries of June 29, 2012 and March 28, 2013 which were denied. She had
been in a nonwork status since March 2013.
3

An April 30, 2014 e-mail indicates that the meeting was held as scheduled and appellant was informed that she
had provided insufficient medical requirements or restrictions, and a second meeting was scheduled on May 2, 2014
at 8:00 a.m.

2

employment. An October 5, 2013 letter or warning was issued for failure to be regular in
attendance.
A May 2, 2014 EMS report reflected that appellant was transported to Memorial Hospital
after a fall to the ground when her right knee gave out. On a duty status report dated May 13,
2014 Dr. Mariorenzi noted that she had fallen on May 2, 2014 and provided restrictions to her
physical activity. In a June 3, 2014 report, he noted seeing appellant on May 13, 2014 with
respect to the aggravation of her right knee due to a May 2, 2014 fall at the employing
establishment. Dr. Mariorenzi indicated that she had been out of work due to a more significant
injury that had occurred about two years previously and was still in contention. He
recommended an arthroscopy based “on the initial injury which occurred on June 12, 2014 [sic]
when she tripped over a bucket at work.” Dr. Mariorenzi concluded:
“The fall markedly increased her pain acutely. As such, this becomes an
aggravation of her preexisting condition. The aggravation is a result of the fall on
May 2, 2014. The original condition is a result of the work-related event of
June 2, 2014. [sic]”
He reiterated his conclusions in a duty status report dated May 10, 2014.
Appellant also submitted e-mails dated April 21 to June 1, 2014. This included
correspondence with union and other representatives. She discussed her previous claims and the
DRAC meeting. Appellant stated that she had not requested DRAC accommodation but was
ordered by the union to appear at 7:00 a.m. On April 30, 2014 the union advised her of the
medical evidence needed for the DRAC meeting. On May 1, 2014 appellant inquired as to why
her presence was required at the meeting and a union representative advised her to attend the
meeting. He stated that it was not an OWCP matter because appellant did not have an accepted
claim. The president of the union advised appellant on May 1, 2014 that she and another union
officer would meet with appellant at 7:00 a.m. prior to the 8:00 a.m. meeting. Appellant’s
representative discussed appellant’s previous claims and disagreed with the employing
establishment’s actions. He believed that the employing establishment should have provided a
modified job to appellant.
On May 7 and 8, 2014 a labor and employment lawyer representing the union advised
appellant that the union local did not represent her in relation to any OWCP matter, noting that
she had her own designated representative. The union lawyer also indicated that, because the
May 2, 2014 DRAC meeting was cancelled and appellant had provided no information that
would support a conclusion that there was any accommodation the employing establishment
could provide, it appeared that the DRAC was unable to assist her and the union was assessing
next steps with regard to its involvement in the DRAC process. Appellant’s representative took
her to the employing establishment on May 9, 2014 to file the instant claim. In additional emails, both he and appellant continued to assert that the May 2, 2014 injury was employment
related.
On June 1, 2014 appellant’s representative asserted that the evidence submitted was
sufficient to establish appellant’s claim because she was required to attend the DRAC meeting on
May 2, 2014.
On June 2, 2014 appellant asserted that she was instructed by union

3

representatives to be at the employing establishment at 7:00 a.m. on May 2, 2014 and that she
had never requested DRAC accommodation.
By decision dated June 23, 2014, OWCP denied appellant’s claim because she failed to
submit sufficient evidence to establish that the injury occurred in the performance of duty. It
noted that the injury occurred at 7:20 a.m. when she was in nonpay status, that she was not
scheduled to work on May 2, 2014, that she was scheduled to attend a DRAC meeting, where her
attendance was optional, and was not performing any employment duties at the time of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury. Regardless of whether the asserted claim involves
traumatic injury or occupational disease, an employee must satisfy this burden of proof.4
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.5 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place, and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.6
It is the claimant’s burden of proof to submit sufficient evidence necessary for OWCP to
make a determination as to whether an employment incident occurred as alleged. The evidence
must be sufficient to establish whether the claimant was in the course of federal employment at
the time of the incident, so that a proper determination may be made as to whether an injury
occurred while in the performance of duty.7 As to the phrase in the course of employment, the
Board has accepted the general rule of workers’ compensation law that, as to employees having
fixed hours and places of work, injuries occurring on the premises of the employing
establishment, while the employees are going to or from work, before or after working hours, or

4

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

5

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

6

Supra note 4.

7

T.S., Docket No. 09-2184 (issued June 9, 2010).

4

at lunch time, are compensable.8 An injury is said to arise in the course of employment when it
takes place within the period of the employment, at a place where the employee reasonably may
be, and while the employee is fulfilling employment duties or is engaged in doing something
incidental thereto. Arising out of employment relates to the causal connection between the
employment and the injury claimed.9
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.10 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 employee.11 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.12
ANALYSIS
The Board finds that appellant has not established an employment-related injury on
May 2, 2014. The injury in this case occurred on the premises of the employing establishment.
This factor alone, however, is not sufficient to establish entitlement to benefits as the
concomitant requirement of an injury “arising out of the course of employment” must be shown.
This encompasses not only the work setting but also a causal concept, i.e., in order for an injury
to be considered as arising out of employment, the facts must show a substantial employer
benefit or requirement which gave rise to the injury.13 It is incumbent upon a claimant to
establish that the claimed injury arose out of employment.14
The facts in this case indicate that appellant was injured when she fell at an employing
establishment facility at 7:20 a.m. on May 2, 2014 when she went to attend a union-called
DRAC meeting being held at 8:00 a.m. to determine reasonable accommodation for a nonworkrelated right knee condition. Her injury did not occur at a time when one could reasonably say
she was engaged in her employer’s business. Appellant’s presence on the employing
establishment’s premises alone was not sufficient to establish entitlement to compensation.
Appellant was at the employing establishment facility solely for personal reasons. She was not
scheduled for work and her attendance at the meeting was not a requirement of employment.
While the DRAC committee and appellant’s union representative advised her to attend the
8

F.S., Docket No. 09-1573 (issued April 6, 2010).

9

B.C., Docket No. 09-653 (issued December 24, 2009).

10

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

11

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

12

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

13

Paula G. Johnson, 53 ECAB 722 (2002).

14

Id.

5

meeting to ensure that her request for accommodation could be fully addressed, the meeting
itself was to determine if reasonable accommodation could be made for a nonwork-related
injury. Appellant has asserted that she had not requested reasonable accommodation. However,
her representative indicated that she requested modified duty, and her previous claims for right
knee injuries had been denied. Moreover, appellant attended a previous DRAC meeting on
April 18, 2014.15
In this case the facts indicate that union representatives requested that appellant meet
with them at 7:00 a.m. In the case Larry D. Passalacqua,16 the Board held that participation in
union activities generally is not considered to be within an employee’s course of employment or
performance of duty.17 The Board noted an exception where the activity undertaken by the
employee was in his or her capacity as a union official and simultaneously served the interest of
the employer.18 Such is not the case here as appellant was not a union official. Thus, this
exception would not apply. In the case George A. Rodriguez,19 the Board held that a meeting to
address a new work schedule was not in the performance of duty because it was voluntary and
not required by the employing establishment, and the Board found that OWCP properly
rescinded acceptance of appellant’s claim.20
As in the case E.S.,21 here the evidence establishes that appellant was at the employing
establishment solely for personal reasons. Appellant was not scheduled to work on May 2, 2014.
In fact she had been in nonpay status for a number of months. Appellant was at the facility to
attend a DRAC meeting to assess whether an accommodation due to a nonwork-related medical
condition could be made. Her activity at the time of the injury was not required as a condition of
her employment and she was not involved in any preparatory activity reasonably incidental to
employment as she was not scheduled to work at that time.22
There is no evidence in the case that appellant’s presence at the employing establishment
on May 2, 2014 furthered her master’s business or provided a substantial benefit to the
employing establishment.23 She has not established an injury in the performance of duty on
May 2, 2014.

15

Supra note 3.

16

32 ECAB 1859 (1981). See also Jimmy E. Norred, 36 ECAB 726 (1985);

17

Id.

18

Id.

19

57 ECAB 224 (2005).

20

Id.

21

58 ECAB 340 (2007).

22

Id.

23

See Howard M. Faverman, 57 ECAB 151 (2005).

6

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 did not establish an injury in the performance of duty on
May 2, 2014.
ORDER
IT IS HEREBY ORDERED THAT the June 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 3, 2015
Washington, DC

Christopher J. Godfrey, Chief 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
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Suburban, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1579
Issued: April 24, 2012

Case Submitted on the Record

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

JURISDICTION
On June 23, 2011 appellant filed a timely appeal from a February 7, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her request to expand
acceptance of her claim. She also appeals a May 25, 2011 nonmerit decision denying her request
for reconsideration of a December 30, 2002 decision as untimely and insufficient to establish
clear evidence of error. 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.
ISSUES
The issues are: (1) whether appellant established that OWCP should expand acceptance
of her claim for asthma, allergies, pulmonary disease and an enlarged heart; and (2) whether
OWCP properly denied her request for reconsideration of its December 30, 2002 decision as it
was untimely and insufficient to show clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated May 13, 2004, the
Board affirmed a December 30, 2002 decision terminating appellant’s compensation effective
July 15, 2000 as she had no further disability due to her accepted conditions of rhino
conjunctivitis and allergic edema causally related to dust exposure at work.2 The facts and
circumstances as set forth in the prior decision are hereby incorporated by reference.3
On June 9, 2009 appellant contacted OWCP to request compensation for disability due to
asthma. OWCP advised her to request that her claim be expanded to include asthma and to
submit a medical report to establish that she sustained asthma caused or aggravated by her
employment. On July 2, 2009 appellant informed OWCP that she had a disabling respiratory
condition related to her prior injury.
By decision dated December 11, 2009, OWCP denied appellant’s request to expand her
claim. It found that she had not submitted any supporting factual or medical evidence.
In a report dated February 10, 2009, received by OWCP on December 29, 2009,
Dr. S.K. Wahi, Board-certified in family medicine, related that appellant was under his care for
employment-related asthma, multiple allergies, recurrent rhino conjunctivitis and uticaria. He
discussed her history of hypertension, pulmonary embolism and deep venous thrombosis.
Dr. Wahi related that appellant qualified for a handicapped apartment.
By letter dated July 19, 2009, appellant challenged the prior termination of her
compensation benefits. She asserted that she wanted her claim accepted for numerous
conditions, among them asthma, allergies, edema, laryngitis, skin rashes, vertigo and vomiting.
Appellant related that her work location tested positive for asbestos and other contaminants and
that hundreds of employees had health problems as a result of exposure to the work location.
She attributed her mother’s death to chronic obstructive pulmonary disease as a result of working
for the employing establishment.
Appellant submitted hospital and emergency room reports dated 2003 to 2009 discussing
her treatment for conditions including hypertension, sleep apnea, insect bites and chest
congestion.

2

Docket No. 03-1119 (issued May 13, 2004). On September 17, 1991 appellant, then a 32-year-old central markup clerk, filed an occupational disease claim alleging that she sustained itching and a rash due to an allergy to dust at
work. OWCP accepted the claim for rhinoconjunctivities and allergic edema and paid her compensation for total
disability beginning April 22, 1992. It doubled a prior occupational disease claim for illness due to problems with
the ventilation at work into the current claim.
3

On November 29, 2010 the Board dismissed an appeal from December 11, 2009 and May 11, 2010 decisions at
appellant’s request. Docket No. 10-1726 (issued November 29, 2010).

2

In a letter dated January 29, 2010, a physician provided a list of medications that were
prescribed to appellant due to her “approved claim of rhino conjunctivitis/upper respiratory
infection/asthma.”4
On February 9, 2010 appellant requested a hearing before an OWCP hearing
representative.5 She related that her address changed such that she was delayed receiving appeal
rights.
On February 24, 2010 Dr. Teresa Cvengros, Board-certified in family medicine, related
that appellant was prescribed a spacer with her inhaler and that the medication was “necessary
due to past exposure to asbestos.”
In a decision dated May 11, 2010, OWCP denied appellant’s request for an oral hearing
as untimely. On July 6, 2010 it vacated its May 11, 2010 decision after finding that her hearing
request was timely.
On September 21, 2010 a physician related that appellant had received treatment for deep
venous thrombosis, pulmonary embolism, severe allergies and employment-related reactive
airway disease.6
At the hearing, held on October 21, 2010, appellant related that the facility where she
worked tested positive for asbestos. She became sick while the employing establishment was
removing asbestos from the building in 1988. Appellant indicated that a prior accepted claim for
an upper respiratory infection should be part of the present claim.
In a statement received October 27, 2010, appellant requested reinstatement of her appeal
of the December 30, 2002 decision. She maintained that the current file number should be
combined with a prior accepted claim. Appellant asserted that the employing establishment
failed to disclose the presence of asbestos. She described the health effects she experienced due
to her exposure to asbestos, listed her hospitalizations and medical treatment and provided a list
of her diagnosed conditions. Appellant further summarized the medical evidence and noted that,
in a report dated September 26, 1996, Dr. Baltazar R. Espiritu, a Board-certified internist and
allergist, found that she had permanent residuals from her accepted work injury. She maintained
that records from the employing establishment from 1988 established that asbestos was present
and removed while she worked in the building. Appellant reiterates that her benefits should be
retroactively reinstated and her claim expanded for multiple medical conditions.
With her request for reconsideration, appellant submitted a statement from Evora R.
Jones, a former employee from a Kansas City, MO, workstation, who related that she was
exposed to asbestos at work and had brain and lung cancer. Appellant submitted an e-mail about
4

The name of the physician is not legible.

5

On February 9, 2010 appellant sent an appeal request form to the Board, which indicated that she wanted an oral
hearing and reconsideration. On November 29, 2010 the Board dismissed the appeal at her request. Docket No. 101726 (issued November 29, 2010).
6

The name of the physician is not legible.

3

asbestos in a Kansas City work location and a letter from a former employing establishment
plumber regarding asbestos in its buildings in New York City, NY.7 She enclosed a publication
about workplace violence and a statement from the employing establishment asserting that air
quality tests showing dust levels within permissible levels.
In a report dated October 29, 2010, Dr. Yogesh P. Vajaria, Board-certified in emergency
medicine, evaluated appellant for complaints of headache and nausea. He noted that her medical
history included environmental allergies, asbestos exposure, migraines, pulmonary embolisms,
hypertension and a history of asthma. Dr. Vajaria diagnosed an acute migraine headache. In a
note dated November 12, 2010, Dr. Cvengros diagnosed asthma.
By decision dated February 7, 2011, the hearing representative affirmed the
December 11, 2009 decision. He found that appellant had not established asbestos exposure and
that the medical evidence was insufficient to accept the additional diagnosed conditions as
causally related to exposure to employment factors. The hearing representative noted that her
employment ceased in 1992.
In a decision dated May 25, 2011, OWCP denied appellant’s request for reconsideration
of its December 30, 2002 decision after finding that it was untimely and did not establish clear
evidence of error.
On appeal, appellant argued that OWCP did not address all of her medical records and
had paid for her allergy pump. She attributed her asthma to her employment. Appellant
provided a list of the dates she received treatment.
LEGAL PRECEDENT -- ISSUE 1
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence, which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the claimant,10 must be one of reasonable medical certainty11
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.12

7

Appellant also submitted a copy of her representative’s March 28, 2003 appeal of the December 30, 2002
decision.
8

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

9

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

10

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

11

John W. Montoya, supra note 8.

12

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

4

ANALYSIS -- ISSUE 1
In a decision dated May 13, 2004, the Board affirmed OWCP’s termination of appellant’s
compensation based on its finding that she had no further disability due to rhino conjunctivitis
and allergic edema from dust exposure at work. On July 2, 2009 appellant requested expansion
of her claim to include disabling pulmonary conditions. She subsequently maintained that
exposure to dust and asbestos at work resulted in numerous medical conditions. Appellant did
not, however, submit any medical evidence supporting that she sustained any diagnosed
condition resulting from the identified employment factors.
In a report dated February 10, 2009, Dr. Wahi related that he was treating appellant for
asthma, allergies, rhino conjunctivitis and uticaria due to her employment. He indicated that she
qualified for a handicapped apartment. Dr. Wahi did not provide any findings on examination or
a rationale for his opinion that the diagnosed conditions were work related. The opinion of a
physician supporting causal relationship must be based on a complete factual and medical
background, supported by affirmative evidence and provide medical rationale explaining the
relationship between the diagnosed condition and work factors.13
On January 29, 2010 a physician provided a list of medications that appellant took due to
her approved rhino conjunctivitis, upper respiratory infection and asthma. The physician did not
address the relevant issue of whether her claim should be expanded or the cause of the diagnosed
conditions other than to note they were “approved.” Consequently, the report is insufficient to
meet appellant’s burden of proof.
On February 24, 2010 Dr. Cvengros related that she had prescribed an inhaler due to
appellant’s history of asbestos exposure. She did not, however, provide a definite diagnosis or
describe how appellant was exposed to asbestos and thus her report is of little probative value.
Appellant submitted numerous reports from hospitals and emergency rooms from 2003 to
2009. On September 21, 2010 a physician noted that she had received treatment for deep venous
thrombosis, pulmonary embolism, allergies and employment-related reactive airway disease.
The physician did not provide any history of injury or rationale for the finding that appellant’s
reactive airway disease was employment related. To be of probative value, a report must contain
a narrative description of the identified employment incident and a reasoned opinion on whether
the employment incident described caused or contributed to appellant’s diagnosed medical
condition.14
On October 29, 2010 Dr. Vajaria diagnosed an acute migraine headache.
On
November 12, 2010 Dr. Cvengros diagnosed asthma. Neither physician, however, address the
cause of the diagnosed conditions. Medical evidence that does not offer any opinion regarding

13

See Robert Broome, 55 ECAB 339 (2004).

14

John W. Montoya, supra note 8.

5

the cause of an employee’s condition is of diminished probative value on the issue of causal
relationship.15
OWCP advised appellant that it was her responsibility to provide a comprehensive
medical report containing a diagnosis and a rationalized opinion regarding the cause of her
condition. She failed to submit such evidence. Appellant’s belief that her condition was caused
by the alleged work-related exposure is not determinative.16 As there is no probative medical
evidence addressing how any diagnosed condition was caused or aggravated by employment, she
has not met her burden of proof to establish that her claim should be expanded.
On appeal, appellant listed the medical evidence of record and argued that she sustained
asthma due to her employment. As discussed, however, she has the burden to submit
rationalized medical evidence supporting her allegation. Appellant’s lay opinion on the cause of
her condition is insufficient to discharge her burden of proof as lay individuals are not competent
to render a medical opinion.17 The issue of causal relationship is a medical one and must be
resolved by probative medical evidence.18
Appellant notes that OWCP paid for her asthma medication. The fact that OWCP
authorized and paid for some medical expenses does not establish that the condition for which
she received treatment was employment related.19
LEGAL PRECEDENT -- ISSUE 2
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a) of FECA.20 As once such limitations, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought. OWCP will consider an untimely application only
if the application demonstrates clear evidence of error on the part of OWCP in its most recent
merit decision. The application must establish, on its face, that such decision was erroneous.21
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that OWCP made an error (for example,
proof of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized
medical report which, if submitted prior to the denial, would have created a conflict in medical
15

Conard Hightower, supra note 9.

16

See D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB
159 (2001).
17

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

18

Luis M. Villanueva, 54 ECAB 666 (2003).

19

See Dale E. Jones, 48 ECAB 648 (1997); James F. Aue, 25 ECAB 151 (1974).

20

5 U.S.C. § 8101 et seq.

21

20 C.F.R. § 10.607.

6

opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.22 To establish clear evidence of error, a
claimant must submit evidence relevant to the issue which was decided by OWCP. The evidence
must be positive, precise and explicit and must manifest on its face that it committed an error.23
ANALYSIS -- ISSUE 2
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original decision.24 A right to reconsideration within one year also
accompanies any subsequent merit decision on the issues.25 As appellant’s October 27, 2010
request for reconsideration was submitted more than one year after May 13, 2004, the date of the
last merit decision of record regarding the termination of her compensation benefits, it was
untimely. Consequently, she must demonstrate clear evidence of error by OWCP in denying her
claim for compensation.26
In an October 27, 2010 request for reconsideration, appellant maintained that her work
location contained asbestos and described a myriad of health conditions that she attributed to
asbestos exposure. She listed the dates of hospitalizations and medical treatment and indicated
that the employing establishment had records regarding her asbestos exposure. The issue,
however, is whether appellant has shown that OWCP erred in finding that she had no further
disability due to her accepted rhino conjunctivitis and allergic edema as a result of dust exposure
at work. To show clear evidence of error, a claimant must submit evidence relevant to the issue
decided by OWCP.27
Appellant also asserted that Dr. Espiritu’s September 26, 1996 report established that she
had permanent residuals of her accepted work injury. OWCP and the Board, however,
previously considered Dr. Espiritu’s opinion prior to the termination of her compensation
benefits. Appellant has not identified any positive and precise error by OWCP in its
consideration of Dr. Espiritu’s report and thus has not shown clear evidence of error.
On reconsideration appellant submitted a statement from Ms. Jones, who worked for the
employing establishment in another work location. Ms. Jones stated that she developed brain
and lung cancer due to employment-related asbestos exposure. Appellant also submitted an
e-mail message about asbestos at Ms. Jones’ work location, a letter from a plumber regarding
asbestos in employing establishment locations in New York City, a publication about workplace
22

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (December 2003).

23

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
24

20 C.F.R. § 10.607(a).

25

Robert F. Stone, supra note 23.

26

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

27

See Thankamma Mathews, 44 ECAB 765 (1993).

7

violence and an e-mail from the employing establishment about dust levels. Again, however, the
relevant issue on reconsideration is whether appellant has disability from her accepted rhino
conjunctivitis and allergic edema. As the evidence submitted on reconsideration regarding the
presence of asbestos at other work locations, publications about workplace violence and e-mail
messages is not relevant to the underlying issue, which is medical in nature, it is insufficient to
show clear evidence of error.28
The evidence submitted in support of appellant’s untimely reconsideration request is
irrelevant and thus insufficient to establish clear evidence of error. In order to establish clear
evidence of error, the evidence submitted must be of sufficient probative value to raise a
substantial question as to the correctness of OWCP’s decision.29 The evidence appellant
submitted on reconsideration fails to meet this standard.
CONCLUSION
The Board finds that appellant has not established that OWCP should expand acceptance
of her claim for additional conditions including asthma, allergies, pulmonary disease and an
enlarged heart. The Board further finds that OWCP properly denied her request for
reconsideration as it was untimely and did not demonstrate clear evidence of error.

28

See Howard Y. Miyashiro, 51 ECAB 253 (1999) (in order to establish clear evidence of error, a claimant must
submit evidence relevant to the issue which was decided by OWCP).
29

See Veletta C. Coleman, 48 ECAB 367 (1997).

8

ORDER
IT IS HEREBY ORDERED THAT the May 25 and February 7, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 24, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

9


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

)
)
)
)
)
)
)
)

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

Docket No. 11-951
Issued: November 10, 2011

Case Submitted on the Record

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

JURISDICTION
On March 7, 2011 appellant filed a timely appeal from the January 11, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for a
work-related emotional condition. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On January 7, 2010 appellant, then a 40-year-old letter carrier, filed an occupational
disease claim alleging that stress at work caused him to suffer anxiety which raised his blood
1

20 C.F.R. § 8101 et seq.

pressure to hypertensive levels. He first became aware of his claimed condition and its
relationship to his work on December 3, 2009.2 Appellant stopped work on December 4, 2009.
In a December 3, 2009 report, James R. Hagen, Ph.D., an attending clinical psychologist,
found that appellant was disabled. In a January 10, 2010 statement, Susan McClincy-Woods, a
supervisor, described his leave usage and noted that he was subject to disciplinary actions for
unsatisfactory performance.
In a February 2, 2010 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of his claim.
In a February 28, 2010 statement, appellant described the incidents and conditions at
work which caused him to sustain stress and anxiety, which in turn adversely affected his cardiac
condition. In December 2008, Ms. McClincy-Woods unfairly denied his request to use leave
after he suffered chest pains and hypertension. On January 15, 2009 appellant was wrongly
taken into her office for a predisciplinary interview. Ms. McClincy-Woods was “nasty and
aggressive” and he started to have chest pains. Appellant claimed that she refused to let a
coworker take him to the emergency room and she called an emergency squad to visit him at the
workplace instead. He stated that in August 2009 Ms. McClincy-Woods unfairly denied his
request for sick leave to address a leg wound he sustained while fishing. On December 3, 2009
Becky Liston, another supervisor, unfairly denied his request to use leave to go to a medical
appointment. Appellant alleged that he sustained stress because he had been wrongly terminated
from the employing establishment three times in the prior year. He asserted that he had been
disciplined for no reason.
Appellant submitted medical evidence reports detailing his treatment for cardiac matters
dated between late 2008 and early 2010. The record also contains several unsigned statements
from May 2010, presumably from coworkers, describing the working relationship between him
and Ms. McClincy-Woods.3
In an undated letter received on June 9, 2010, appellant asserted that
Ms. McClincy-Woods unfairly denied his request in October 2009 to take leave to visit his
wife’s family in Brazil. He advised that a treating cardiologist stated that the actions of
Ms. McClincy-Woods triggered his hypertension condition. Appellant was in fear of being fired
by her and other managers and this circumstance was the main cause of his claimed condition.
In a July 22, 2010 decision, OWCP denied appellant’s claim on the grounds that he did
not establish any compensable employment factors. It found that he had not shown that the
employer committed error or abuse with respect to such administrative matters as handling leave
requests and disciplinary matters.

2

Appellant later claimed that his work stress caused him to sustained depression and an anxiety condition.

3

Appellant also submitted a step-B decision dated September 8, 2005, it was found that management did not have
just cause to issue him a notice of 14-day suspension. In a step-B decision dated May 18, 2006, it was found that
management did not have just cause to issue appellant a notice of 10-day suspension.

2

Appellant requested a telephonic hearing with an OWCP hearing representative. During
the November 3, 2010 hearing, counsel argued that appellant was unjustly fired several times as
evidenced by the fact that the employer rehired him after each termination. He stated that
Ms. McClincy-Woods unjustly fired appellant about two and a half years ago and his job was
reinstated as a result of a Military Review Board or Merit Systems Protection Board decision,
which determined that his firing was unjustified. Appellant testified that he was fired a second
time in June 2008, but this firing was overturned following a grievance. He indicated that his
third firing was in April or May 2009, due to leaving his vehicle unattended and his employment
was reinstated after he filed a grievance. Appellant noted that he reacted to the improper denial
of his sick leave but he felt that the unjust firings were the main factor in causing his depression
and hypertension.
Appellant submitted a number of documents relating to disciplinary actions leveled
against him and grievances he filed to challenge these actions, including a September 7, 2007
document advising him that he was being issued a 14-day suspension for unsatisfactory
performance; a February 20, 2008 letter of decision finalizing a January 10, 2008 notice of
proposed removal for conduct; a February 26, 2008 step-B decision determining that he would
have a step-A grievance meeting related to his January 8, 2007 proposed removal for improper
conduct; and a September 2, 2009 notice of proposed removal noting work performance issues.
The record also includes documents relating to settlements of some of these matters,
including a March 4, 2008 settlement agreement form dictating that appellant be allowed 78
hours of unscheduled leave over the following 18 months but would be immediately fired if he
accumulated more than 78 hours; a March 12, 2008 step-B settlement agreement noting that the
dispute resolution team determined that management had just cause for progressive disciplinary
actions and that his 14-day suspension should be reduced and remain in his file for six months;
and settlement agreement and last chance agreement, signed by him on October 13, 2009, in
which he agreed that an August 31, 2009 notice of proposed removal for unsatisfactory
performance contained fair and just charges. Appellant agreed to withdraw any grievances
relating to the notice of proposed removal and that violation of the last chance agreement would
bring about his immediate firing. The settlement agreement was made without prejudice to the
employing establishment.4
In a January 11, 2011 decision, an OWCP hearing representative affirmed OWCP’s
July 22, 2010 decision noting that appellant still had not established any compensable
employment factors. It was determined that none of the documents relating to grievances he
filed showed that the employing establishment committed error or abuse with respect to
administrative matters.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
4

Appellant also submitted additional medical evidence in support of his claim.

3

concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.5 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reduction in
force or his frustration from not being permitted to work in a particular environment or to hold a
particular position.6
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.7 This burden includes the submission of a detailed
description of the employment factors or conditions which he believes caused or adversely
affected a condition for which compensation is claimed and a rationalized medical opinion
relating the claimed condition to compensable employment factors.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.10
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.11 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.12
In determining whether the employing establishment has erred or acted abusively, the Board will

5

Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

Gregorio E. Conde, 52 ECAB 410 (2001).

7

Pamela R. Rice, 38 ECAB 838, 841 (1987).

8

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

9

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

10

Id.

11

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon.,
42 ECAB 556 (1991).
12

William H. Fortner, 49 ECAB 324 (1998).

4

examine the factual evidence of record to determine whether the employing establishment acted
reasonably.13
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied his emotional condition claim on the
grounds that he did not establish any compensable employment factors. The Board must, thus,
initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of FECA. The Board notes that appellant’s allegations do
not pertain to his regular or specially assigned duties under Cutler.14 Rather, appellant has
alleged error and abuse in administrative matters.
Appellant claimed that he sustained stress-related conditions, including depression and
hypertension, due to improper actions taken by managers beginning in 2008 in relation to leave
requests and disciplinary actions, including suspensions and firings. The Board notes that these
claims relate to administrative matters which would not be considered employment factors unless
the employing establishment committed error or abuse with respect to them.15
Appellant reported that the main cause of his stress-related conditions was that he was
unfairly fired three times by the employing establishment.16 However, he did not submit
evidence showing that these firings were improper. At the hearing before an OWCP hearing
representative, appellant indicated that he would submit decisions that showed the firings were
wrongful but he did not submit such evidence. The Board notes that the fact that he was
reinstated several times would not, in itself, show wrongdoing by management. The Board has
held that the mere fact that the employer lessens or reduces a disciplinary action or sanction does
not establish abuse.17 Appellant indicated that he constantly feared that he would be fired again,
but the Board has previously held that a claimant’s job insecurity is not a compensable factor of
employment under FECA.18
Appellant also alleged that managers, including Ms. McClincy-Woods, wrongly denied
leave requests he made between December 2008 and December 2009. He did not submit any
evidence showing that the employing establishment committed error or abuse with respect to
these matters. Appellant also alleged wrongdoing with respect to disciplinary actions beginning
in 2008, including several suspensions and proposed removal actions. The record contains
several documents regarding these matters but they do not provide any indication of employer
13

Ruth S. Johnson, 46 ECAB 237 (1994).

14

See Cutler supra note 5.

15

See supra notes 11 through 13.

16

It appears that these firings occurred in 2008 and 2009.

17

See Barbara E. Hamm, 45 ECAB 843 (1994).

18

See Allen C. Godfrey, 37 ECAB 334, 337-38 (1986).

5

wrongdoing.19 In fact, several of the documents explicitly indicate that the employer’s actions
were justified. Appellant made reference to an incident on January 15, 2009 claiming that
Ms. McClincy-Woods wrongly took him into her office for a predisciplinary interview and
improperly handled his request for medical attention. However, he did not submit evidence
showing that she committed error or abuse with respect to these administrative matters.20
For the foregoing reasons, appellant has not established any compensable employment
factors under FECA and, therefore, has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.21
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 met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.

19

The record contains step-B decisions, dated September 8, 2005 and May 18, 2006, indicating that management
did not have just cause to issue appellant notices of 14-day and 10-day suspensions, respectively. However,
appellant did not relate his claimed conditions to these matters; they concern disciplinary actions that occurred years
before the work incidents and conditions claimed in the present case.
20

Appellant claimed that Ms. McClincy-Woods acted in a “nasty and aggressive” manner on that date, but he did
not further describe the nature of her actions or provide supporting evidence.
21

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-637
Issued: October 7, 2009

Case Submitted on the Record

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

JURISDICTION
On January 6, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated July 22, 2008, finding that she had not established
a recurrence of disability. She also appealed a December 17, 2008 nonmerit decision from the
Branch of Hearings and Review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
sustained a recurrence on May 7, 2008 causally related to her February 16, 2002 employment
injury; and (2) whether the Branch of Hearings and Review properly denied her request for an
oral hearing as untimely.

FACTUAL HISTORY
On February 16, 2002 appellant, then a 39-year-old sales and service associate, injured
her back while lifting mail in the performance of duty. The Office accepted her claim for lumbar
sprain/strain on April 25, 2002.
On May 9, 2008 appellant filed a recurrence of disability claim alleging that on May 7,
2008 she sustained a recurrence of disability due to her February 16, 2002 employment injury.
She had returned to limited-duty work after her February 16, 2002 employment injury with
restrictions on repetitive bending, lifting from the floor, standing, pushing or pulling.1 On the
reverse of the form, appellant’s supervisor, Kevin Stephenson, stated that on May 7, 2008
appellant performed the duties of her assignment with no notification of injury. He stated that
she returned to work on May 10, 2008 with no limitations.
Dr. Charles E. Willis, a physician Board-certified in pain management, completed a note
on December 28, 2007. He stated that appellant reported increased low back pain after
prolonged work. Dr. Willis found lumbar paraspinal tenderness with fair range of motion,
negative sensory deficits and negative motor deficits. He diagnosed acute exacerbation of pain.
On February 12, 2008 Dr. Willis stated that appellant reported that her pain had improved. On
April 29, 2008 he reported that she had increased pain with paraspinal tenderness and decreased
range of motion. Dr. Willis opined that appellant’s condition had worsened. He recommended
lumbar epidural steroid injections.
The Office requested additional factual and medical evidence in support of appellant’s
claim by letter dated May 19, 2008. It allowed 30 days for a response.
On May 22, 2008 appellant contended that she was forced to work outside of her
restrictions including repetitive stooping, bending, lifting and pushing. On May 7, 2008 she was
preparing mail located in buckets on the floor and pushing containers of mail which required
excessive stooping, bending, lifting and pushing when she developed pain in her lower back and
shoulders. Appellant submitted a statement dated May 22, 2008 from Beverly Miller, a
coworker, who stated that on May 7, 2008 appellant informed her that the employing
establishment instructed her to perform mail dispatch and that she appeared to be in pain while
performing these duties. She also submitted a document dated May 7, 2008, which included the
instructions to pull out, start mail prep dispatch and close-out at 6:15. This document has the
name of appellant’s supervisor, Mr. Stephenson, written on it.
Dr. Willis examined appellant on May 9, 2008 and found numbness in her left lower
extremity. He opined that her condition was worsening.
Dr. Willis performed a lumbar epidural steroid injection at L5-S1 on May 23, 2008. In a
note dated May 30, 2008, he found negative lumbar paraspinal tenderness with good range of
motion, negative sensory deficits and negative motor deficits.

1

Appellant filed a second recurrence of disability on September 22, 2008 and alleged that she sustained a
recurrence of disability on May 7, 2008 due to her February 16, 2002 employment injury.

2

By decision dated July 22, 2008, the Office denied appellant’s claim for recurrence of
disability on May 7, 2008 finding that she failed to submit the necessary medical opinion
evidence.
In a letter dated September 22, 2008, appellant requested reconsideration of the July 22,
2008 decision. She also submitted a form which indicated that she wished to request
reconsideration. On November 20, 2008 appellant requested a review of the written record. In a
letter dated November 20, 2008, she stated that she indicated the wrong appeal right and
requested a review of the written record.
By decision dated December 17, 2008, the Office denied appellant’s request for review of
the written record was untimely and stated that she could pursue her claim through the
reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
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 she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that she can perform the limited-duty position, the employee has the burden of
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she 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
ANALYSIS -- ISSUE 1
Appellant filed a notice of recurrence of disability alleging on May 7, 2008 she sustained
a recurrence of disability due to her February 16, 2002 employment injury. She indicated that
following her back injury on February 16, 2002 she had returned to limited-duty work.
Appellant alleged a recurrence of disability, as she was required to work beyond her limitations.
She stated that on May 7, 2008 she was required to perform excessive stooping, bending, lifting
and pushing and developed pain in her lower back and shoulders.
Appellant has not submitted any evidence corroborating her statements that her light-duty
job requirements had changed. The record does not contain her light-duty job requirements or a
2

20 C.F.R. § 10.5(x).

3

Joseph D. Duncan, 54 ECAB 471, 472 (2003); Terry R. Hedman, 38 ECAB 222, 227 (1986).

3

copy of her position description. The record contains only appellant’s allegations that she was
required to work beyond her restrictions. The statement from Ms. Miller indicates that appellant
stated that she was required to perform duties that caused her pain. She does not allege that she
was aware that these activities exceeded appellant’s work restrictions. Appellant also submitted
a statement which appears to be a work assignment for May 7, 2008. However, this statement
does not appear to be signed by Mr. Stephenson and is most accurately described as appellant’s
recollection of her job duties. This evidence is not sufficient to meet appellant’s burden of proof
to establish a change in the nature and extent of her light-duty job requirements resulting in a
recurrence of disability.
Appellant also failed to submit sufficient medical opinion evidence to establish a change
in the nature and extent of her employment-related condition. Appellant’s attending physician,
Dr. Willis, a physician Board-certified in pain management, examined her on May 9, 2008 and
found numbness in her left lower extremity. He opined that appellant’s condition was
worsening. While Dr. Willis opined that her condition was worsening on May 9, 2008, his note
of April 29, 2008 just prior to the alleged recurrence of disability on May 7, 2008 also reported
that appellant had increased pain with paraspinal tenderness and decreased range of motion and
included the opinion that her condition had worsened. Dr. Willis did not clearly attribute
appellant’s worsening condition to February 16, 2002 injury. He did not offer any opinion
explaining how her current condition was due to her accepted employment injury of
February 16, 2002. Without any medical opinion evidence, Dr. Willis’ reports are not sufficient
to establish that appellant sustained a recurrence of disability on or after May 7, 2008 causally
related to her accepted employment injury.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides in pertinent
part as follows:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary … is entitled, on request made
within 30 days after the date of issuance of the decision, to a hearing on his claim
before a representative of the Secretary.”4
The claimant can choose between two formats: an oral hearing or a review of the written
record.5 The requirements are the same for either choice.6 The Board has held that section
8124(b)(1) is “unequivocal” in setting forth the time limitation for requesting hearings or reviews
of the written record. A claimant is entitled to a hearing or review of the written record as a
matter of right only if the request is filed within the requisite 30 days as determined by postmark

4

5 U.S.C. §§ 8101-8193, § 8124(b)(1).

5

20 C.F.R. § 10.615.

6

Claudio Vazquez, 52 ECAB 496, 499 (2001).

4

or other carrier’s date marking7 and before the claimant has requested reconsideration.8
However, when the request is not timely filed or when reconsideration has previously been
requested, the Office may within its discretion, grant a hearing or review of the written record
and must exercise this discretion.9
ANALYSIS -- ISSUE 2
The Office issued a decision on July 22, 2008, denying appellant’s claim for a recurrence
of disability.
Appellant requested a review of the written record by letter dated
November 20, 2008. She made her request for a review of the written record more than 30 days
after the Office’s July 22, 2008 decision. The Board finds that appellant is not, therefore,
entitled to a review of the written record as a matter of right. The Board further finds that the
Branch of Hearings and Review then properly proceeded to exercise its discretion by finding that
she could pursue her claim through the reconsideration process. The Board concludes that the
Branch of Hearings and Review properly denied appellant’s request for a review of the written
record.
CONCLUSION
The Board finds that appellant has not submitted the necessary factual evidence to
establish a change in the nature and extent of her light-duty job requirements. The Board further
finds that she has not submitted the necessary medical opinion evidence to establish a change in
the nature and extent of her injury-related condition. Appellant’s claim for a recurrence of
disability on May 7, 2008 must be denied. The Board further finds that the Branch of Hearings
and Review properly denied her request for a review of the written record as untimely.

7

20 C.F.R. § 10.616(a). Tammy J. Kenow, 44 ECAB 619 (1993).

8

Martha A. McConnell, 50 ECAB 129, 130 (1998).

9

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 17 and July 22, 2008 are affirmed.
Issued: October 7, 2009
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 16-1353
Issued: December 12, 2016

Case Submitted on the Record

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

JURISDICTION
On June 17, 2016 appellant, through counsel, filed a timely appeal of a March 14, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days has elapsed from the last merit decision, dated November 4, 2015, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3 the Board lacks jurisdiction to review the merits of the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal counsel contends that there was an unresolved conflict of medical opinion
evidence.
FACTUAL HISTORY
On July 26, 2005 appellant, then a 31-year-old mail processor, filed a traumatic injury
claim (Form CA-1) alleging that on July 26, 2005 while in the performance of duty she
dislocated her right shoulder pulling a heavy tray off the top of a cage. She underwent a right
shoulder magnetic resonance imaging (MRI) scan on August 11, 2015 which demonstrated no
fracture or dislocation, but moderate rotator cuff tendinitis. OWCP accepted her claim on
October 19, 2005 for closed dislocation of the right shoulder. On December 1, 2005 appellant
underwent right shoulder surgery to repair multidirectional instability with a Bankart lesion
anteriorly and disruption of the posterior capsule, posterior and inferior. She returned to lightduty work on April 28, 2006.
Appellant filed a recurrence of disability claim (Form CA-2a) on June 24, 2006, alleging
that on June 22, 2006 she stopped work due to symptoms of her accepted right shoulder
condition. On August 16, 2006 OWCP accepted a recurrence of disability and paid
compensation. Appellant underwent an anterior inferior capsular shift and rotator interval
closure surgery on September 25, 2006. OWCP expanded the accepted condition to include
brachial neuritis or brachial plexopathy on the right on November 1, 2007.
On September 10, 2009 appellant underwent a repeat anterior inferior shift and rotator
interval closure on her right shoulder. In a report dated January 30, 2013, Dr. John M. Fenlin, a
Board-certified orthopedic surgeon, and appellant’s attending physician, examined appellant and
found that her right shoulder subluxed inferiorly at rest. He noted that she was capable of active
elevation to 90 degrees and passive elevation to 150 degrees. Dr. Fenlin noted that appellant
could be passively subluxed anterior, posterior, and inferior. On February 6, 2013 he opined that
she was unable to work and that surgery was not recommended. Dr. Fenlin found that appellant
could not reach, reach above the shoulder, twist, bend, stoop, operate a motor vehicle, perform
repetitive movements of the wrists or elbows, push, pull, or lift, more than one pound and
restricted her squatting, kneeling, and climbing. He recommended minimal use of the right
upper extremity.
OWCP referred appellant for a second opinion evaluation with Dr. Stanley Askin, a
Board-certified orthopedic surgeon, on June 30, 2014. In a report dated July 11, 2014, Dr. Askin
reviewed appellant’s history of injury and medical history including the accepted conditions of
closed dislocation of the right shoulder and brachial plexopathy on the right. He performed a
physical examination and noted that her right deltoid muscle was visibly atrophied and that her
right humeral head was relatively anterior and interiorly subluxed compared with the left.
Appellant had limited range of motion in her right shoulder. She had positive Phalen’s test,
Tinel’s sign and Roos’ sign on the right which Dr. Askin found suggestive of carpal tunnel

2

syndrome. Dr. Askin noted that appellant’s brachial plexus injury no longer appeared to be
present. He diagnosed nonemployment-related carpal tunnel syndrome.
Dr. Askin found that appellant continued to experience residuals of her accepted right
shoulder condition which inhibited normal function of the right shoulder. He indicated that she
could work with restrictions on movements of her right shoulder including using her right arm at
or above shoulder height. Dr. Askin opined that appellant was capable of performing mediumduty work activities as long as she could keep her right arm against her side. He found that her
right shoulder condition was permanent, but that her nonemployment-related carpal tunnel
syndrome could be treated with surgery. Dr. Askin did not recommend any additional right
shoulder surgery and found that appellant had reached maximum medical improvement. He
provided work restrictions including no reaching above the shoulder with right arm and pushing,
and pulling up to 10 pounds with her right arm. Dr. Askin indicated that appellant could lift up
to 50 pounds with her right arm at her side.
In a note dated December 4, 2014, Dr. Barbara Frieman, a Board-certified orthopedic
surgeon, examined appellant’s right shoulder finding 30 degrees of forward elevation and 20
degrees of abduction. She noted that appellant’s right humeral head sat anterior to the glenoid,
and that she had a clearly dislocated shoulder. Dr. Frieman noted that appellant had some
numbness and tingling in her median nerve distribution at rest because of her anterior
dislocation. She examined right shoulder x-rays and found appellant’s right shoulder was
anteriorly dislocated. Dr. Frieman diagnosed three failed instability operations, right shoulder
with permanent anterior subluxation, and recurrent dislocation of the right shoulder. She opined
that appellant was permanently disabled from work at the employing establishment. Dr. Frieman
completed a work capacity evaluation (Form OWCP-5c) on December 4, 2014 finding appellant
could not reach, reach above the shoulder, twist, bend, stoop, operate a motor vehicle, perform
repetitive movements of the wrists or elbows, push, pull, or lift more than one pound, and
restricted her squatting, kneeling, and climbing.
The employing establishment provided an investigative memorandum to OWCP. OWCP
referred the contents of this report to Dr. Askin on December 30, 2014 and requested a
supplemental report. In a report dated January 16, 2015, Dr. Askin repeated his earlier findings
and conclusions. On February 2, 2015 he reviewed the surveillance tapes and found that these
presented evidence that appellant’s assertion of a painful right shoulder within constraints of
motion was not a truthful presentation. Dr. Askin found that appellant had better function than
she represented during his second opinion examination and could reasonably be expected to
return to work without any imposed restrictions.
On February 13, 2015 OWCP provided Dr. Askin with appellant’s date-of-injury position
description and asked if she could perform the duties of this position. Dr. Askin opined that
appellant could perform heavy work without restrictions.
OWCP issued a notice of proposed termination on May 12, 2015 proposing to terminate
appellant’s wage-loss compensation and medical benefits due to her accepted right shoulder
conditions. It found, based on Dr. Askin’s reports, that appellant had no disability for work and
no medical residuals requiring further treatment. OWCP allowed appellant 30 days for a
response.

3

Counsel responded on May 20, 2015 and requested an additional 30-day extension
because he planned to provide additional medical evidence. No evidence was received within
the time allotted.
By decision dated July 2, 2015, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective July 2, 2015.
Dr. Frieman examined appellant on June 25, 2015 and submitted notes diagnosing
anterior dislocation of humerus and chronic instability of the right arm as well as pain in the
shoulder joint. She found that appellant was totally disabled from any work involving her right
upper extremity including repetitive reaching, lifting, pushing, or pulling. Dr. Frieman opined
that appellant could not elevate her arm against gravity and found that she had some brachial
plexus irritation associated with her subluxation.
Counsel requested an oral hearing from OWCP’s Branch of Hearings and Review on
July 8, 2015. Appellant testified at the oral hearing on September 15, 2015 and described the
duties of her date-of-injury position. She noted that she had not viewed the surveillance video,
but agreed that she mowed the lawn with pain. Following the oral hearing, appellant submitted a
June 25, 2015 attending physician’s report (Form CA-20) from Dr. Frieman indicating that
appellant was totally disabled. Dr. Frieman also completed a May 25, 2015 work capacity
evaluation (Form OWCP-5c).
In a letter dated October 22, 2015, counsel contended that Dr. Frieman’s June 25, 2015
attending physician’s report created a conflict of medical opinion evidence with Dr. Askin’s
reports.
By decision dated November 4, 2015, OWCP’s hearing representative affirmed the
July 2, 2015 termination decision finding that the weight of the medical opinion evidence rested
with Dr. Askin.
Counsel requested reconsideration on December 15, 2015. In support of this request, he
submitted Dr. Frieman’s June 25, 2015 report and work restrictions as well as her work
restriction evaluations and form reports dated December 3 and 4, 2014, and May 25, 2015.
Counsel contended that there was a conflict of medical opinion evidence between Dr. Frieman
and Dr. Askin requiring an impartial medical examiner to resolve.
By decision dated March 14, 2016, OWCP declined to reopen appellant’s claim for
consideration of the merits finding that she submitted repetitious evidence and argument in
support of her request for reconsideration.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.3
Section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant may
3

5 U.S.C. §§ 8101-8193, 8128(a).

4

obtain review of the merits of the claim by submitting in writing an application for
reconsideration which sets forth arguments or evidence and shows that OWCP erroneously
applied or interpreted a specific point of law; or advances a relevant legal argument not
previously considered by OWCP; or includes relevant and pertinent new evidence not previously
considered by OWCP.4 Section 10.608 of OWCP’s regulations provides that when a request for
reconsideration is timely, but does meet at least one of these three requirements, OWCP will
deny the application for review without reopening the case for a review on the merits.5 Section
10.607(a) of OWCP’s regulations provides that to be considered timely an application for
reconsideration must be received by OWCP within one year of the date of OWCP’s merit
decision for which review is sought.6
ANALYSIS
The Board finds that appellant submitted a timely request for reconsideration on
December 15, 2015, within one year of the November 4, 2015 OWCP hearing representative’s
decision. The Board further finds that appellant failed to submit relevant, new legal argument
not previously reviewed in support of this request which would require OWCP to reopen
appellant’s claim for consideration of the merits in accordance with 20 C.F.R. § 10.606(b)(3).
In support of the December 10, 2015 request for reconsideration, counsel argued that
Dr. Frieman’s June 25, 2015 note created a conflict with the reports of Dr. Askin, OWCP’s
second opinion physician. The Board notes that this is not a new argument as counsel presented
this contention on October 22, 2015 prior to the November 4, 2015 decision of OWCP’s hearing
representative. As this argument has been previously considered by OWCP, it is repetitious or
duplicative and, thus is insufficient to warrant further merit review.7
The Board further finds that the medical evidence submitted in support of appellant’s
December 10, 2015 request for reconsideration is repetitive or cumulative of the evidence in the
record at the time of the November 4, 2015 decision. Counsel previously submitted work
restriction evaluations as well as the June 25, 2015 report from Dr. Frieman before the
November 4, 2015 decision of OWCP’s hearing representative. The documents dated
December 3 and 4, 2014, May 25, and June 25, 2015 do not contain additional medical evidence,
and are instead merely a restatement of Dr. Frieman’s findings and conclusions which were
included in the record at the time of the last merit decision. As this evidence is repetitious, it
cannot be considered new evidence and does not require OWCP to reopen appellant’s claim for
consideration of the merits.8

4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.608.

6

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(October 2011).
7

See P.O., Docket No. 15-0852 (issued September 28, 2016); Eugene F. Butler, 36 ECAB 393, 398 (1984).

8

Id.

5

The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 12, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6