United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Kingstown, RI, Employer
__________________________________________

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

Docket No. 18-1060
Issued: November 1, 2018

Case Submitted on the Record

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

JURISDICTION
On April 30, 2018 appellant filed a timely appeal from a March 30, 2018 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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective February 4, 2018; and (2) whether appellant has
met her burden of proof to establish continuing disability after February 4, 2018 causally related
to her December 29, 2014 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 7, 2015 appellant, then a 57-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that, on December 29, 2014, she pulled a muscle in her right
calf when she lifted a heavy package at work. She stopped work on December 30, 2014.
OWCP accepted that appellant sustained a right calf sprain and paid appellant disability
compensation on the daily rolls beginning February 13, 2015 and on the periodic rolls beginning
May 3, 2015.
In mid-May 2015, appellant sought treatment for a reddened wound on her right foot which
she first noticed on May 12, 2015. She developed an infected abscess on the plantar aspect of her
right foot. On May 21, 2015 a metal shard was surgically removed from appellant’s right foot
during irrigation and debridement surgery.2 During additional irrigation surgery on May 28, 2015
appellant underwent a balloon angioplasty of her right foot with the insertion of two stents. Over
the course of the latter half of 2015, she received treatment for infections related to her right foot
abscess. During this period, appellant was diagnosed with diabetes which was thought to have
been a longstanding condition.3
On January 4, 2016 Dr. John K. Czerwien, Jr., an attending Board-certified orthopedic
surgeon, reported that appellant’s right foot abscess had essentially healed. He diagnosed lumbar
strain/sprain, lumbar degenerative disc disease, and right lower extremity radiculopathy.
The findings of April 11, 2016 electromyogram (EMG) and nerve conduction velocity
(NCV) testing of appellant’s lower extremities contained an impression of right sciatic nerve
entrapment at its exit through the greater sciatic foramen beneath the piriformis muscle, and
metabolic peripheral polyradicular neuropathy of the bilateral lower extremities.
In a May 1, 2017 report, Dr. Czerwein diagnosed lumbalgia, chronic axillary mechanical
back pain, and piriformis syndrome which he felt were attributable to appellant’s December 29,
2014 employment injury. He indicated that appellant could return to light-duty work.
On August 15, 2017 OWCP referred appellant for a second opinion examination to
Dr. Joseph B. Fitzgerald, a Board-certified orthopedic surgeon. It requested that Dr. Fitzgerald
evaluate appellant’s right lower extremity condition and determine whether appellant had residuals
of her December 29, 2014 employment injury.

2

The medical reports of record reflect that appellant alternated between reporting that she stepped on a piece of
metal at work and reporting that she was not sure when the metal shard entered her right foot. There is no indication
in the case record that she filed a claim for an employment-related right foot injury.
3

On July 16, 2015 OWCP referred appellant for a second opinion examination to Dr. Gilbert Shapiro, a Boardcertified orthopedic surgeon, in order to further evaluate her medical condition. In an August 29, 2015 report,
Dr. Shapiro opined that appellant’s December 29, 2014 right calf sprain had resolved and that her continuing medical
problems were due to several nonwork-related conditions, including diabetic lower extremity neuropathy and infection
of the right foot.

2

In a September 8, 2017 report, Dr. Fitzgerald noted appellant’s factual and history and
detailed the findings of the physical examination he conducted on that date. He noted that
appellant was observed to have an antalgic gait and an inability to heel and toe walk on the right.
Appellant had an apparent sensory abnormality in her right lower extremity with increased
sensation to light touch in her lateral calf, loss of sensation to light touch in the dorsum of her right
foot, and tenderness associated with multiple scars on the plantar aspect of her right foot.
Dr. Fitzgerald noted that darsalis pedis and posterior tibial pulses were absent on the right side and
were trace positive on the left side. There was loss of active and passive motion of the toes of the
right foot, and significant loss of both active and passive dorsiflexion of the right ankle.
Dr. Fitzgerald diagnosed right calf strain, sciatic neuropathy plus metabolic bilateral peripheral
neuropathy, arterial insufﬁciency in the right lower extremity, status post angioplasty and stent
insertion, status post incision and drainage of right foot abscess, and lumbar spondylosis.
Dr. Fitzgerald opined that appellant’s December 29, 2014 right calf sprain/strain had
resolved and noted that no objectively verifiable residual damage to the right calf muscle was
present upon physical examination. He indicated that appellant had preexisting conditions of right
sciatic nerve impingement and metabolic polyneuropathy which were the primary cause of
numbness/tingling in her right lower extremity, but he noted that the December 29, 2014 incident
caused a slight aggravation/exacerbation of those preexisting conditions.4 Dr. Fitzgerald indicated
that the surgical scarring related to appellant’s nonwork-related right foot abscess and the
preexisting nonwork-related neuropathy of her right lower extremity caused appellant to be
permanently limited to sedentary light duty.5
On October 5, 2017 Dr. Czerwein noted that appellant reported that she continued to have
back pain and radicular-type right lower extremity pain. He diagnosed lumbar strain/sprain and
lumbar spondylosis and indicated that appellant reported she was going to return to light-duty
work.6
On October 6, 2017 OWCP requested that Dr. Fitzgerald provide a supplemental report to
clarify whether the December 29, 2014 employment injury caused an aggravation of appellant’s
preexisting sciatic nerve impingement and metabolic polyneuropathy that still caused residuals.
In a November 11, 2017 supplemental report, Dr. Fitzgerald indicated that appellant
sustained a right calf sprain on December 29, 2014 by lifting a heavy package at work. He opined
that the right foot numbness and tingling she developed later that day constituted a temporary
aggravation of her preexisting sciatic neuropathy and metabolic peripheral neuropathy.
Dr. Fitzgerald noted that appellant’s right foot abscess from 2015 was a consequence of arterial
insufﬁciency in her right lower extremity. In order to treat the abscess and preserve her right foot,
4

Dr. Fitzgerald indicated that appellant also had the preexisting conditions of arterial insufficiency of the lower
extremities and lumbar spondylosis.
5
In a September 8, 2017 work capacity evaluation form (Form OWCPc), Dr. Fitzgerald recommended various
work restrictions, including walking for no more than two hours per day, standing for no more than six hours per day,
and lifting, pushing, pulling no more than 10 pounds.
6
Although Dr. Czerwein indicated since May 2017 that appellant could return to light-duty work, she did not, in
fact, return to any type of work after she stopped work on December 30, 2014.

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appellant underwent multiple surgical procedures which caused permanent damage and loss of
function of the foot. Dr. Fitzgerald opined that the development of appellant’s right foot abscess
was not related to her December 29, 2014 calf strain and that the sciatic neuropathy and metabolic
peripheral neuropathy both had returned to their preinjury status.
In a November 8, 2018 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits because she no longer had residuals of her
December 29, 2014 employment injury. It informed her that the proposed termination action was
justified by the opinion of Dr. Fitzgerald. OWCP afforded appellant 30 days to submit evidence
and argument challenging the proposed termination action.
In a December 15, 2017 report, appellant asserted that, even though Dr. Czerwein and
Dr. Fitzgerald had cleared her to return to light-duty work, she believed that she still had
“permanent medical issues” due to her December 29, 2014 employment injury. She noted that
Dr. Czerwein had opined that the nerve pain which traveled from her back down to her right foot
was related to her December 29, 2014 employment injury, rather than to a preexisting condition.
Appellant indicated that she was unaware she had diabetes until she was diagnosed with the
condition after December 29, 2014 and noted that she understood her right foot problems were not
employment related.
Appellant submitted a December 7, 2017 report from Dr. Czerwein who indicated that
appellant reported that her right calf still bothered her and that she had back pain which radiated
down her right leg. Dr. Czerwein advised that appellant had tenderness over the lumbar spine and
right calf upon physical examination, and he diagnosed sciatic neuropathy, piriformis-type
syndrome, lumbalgia, and right calf pain. He noted, “I know Dr. Fitzgerald mentioned that the
calf strain had healed. It is very possible. She is still having some calf pain but she does have a
sciatic neuropathy that has been confirmed on EMG. With this being said, there is objective
evidence of pathologic significance.” Dr. Czerwein indicated that appellant could perform lightduty work.
In another December 7, 2017 report, Dr. Czerwein expressed his belief that appellant still
had neurologic symptoms in her right lower extremity. He also indicated that appellant continued
to have evidence of right calf pain. Dr. Czerwein felt that an “independent medical examination”
was necessary to evaluate appellant’s right calf condition.
By decision dated January 8, 2018, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective February 4, 2018, because she had no residuals of her
December 29, 2014 employment injury after that date. It found that the weight of the medical
evidence with respect to appellant’s employment-related residuals rested with the opinion of
Dr. Fitzgerald, OWCP’s referral physician. OWCP noted that the reports of Dr. Czerwein were of
limited probative value with respect to such residuals.
On February 1, 2018 appellant requested reconsideration of OWCP’s January 8, 2018
decision.
Appellant submitted a January 22, 2018 narrative report from Dr. Czerwein who noted that
appellant was “still having work-related right lower extremity sciatic neuropathy.” In a

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January 22, 2018 disability report, Dr. Czerwein advised that appellant was unable to return to
work until after her next medical appointment on March 22, 2018.
By decision dated March 30, 2018, OWCP denied modification of its January 8, 2018
decision. It found that the weight of the medical evidence with respect to appellant’s employmentrelated residuals continued to rest with Dr. Fitzgerald’s opinion and that the newly submitted
reports of Dr. Czerwein did not establish disability after February 4, 2018 due to the December 29,
2014 employment injury.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.7 It may not terminate compensation without establishing
that the disability ceased or that it was no longer related to the employment.8 After termination or
modification of compensation benefits, clearly warranted on the basis of the evidence, the burden
for reinstating compensation benefits shifts to appellant. In order to prevail, appellant must
establish by the weight of the reliable, probative and substantial evidence that he or she had an
employment-related disability which continued after termination of compensation benefits.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective February 4, 2018.
OWCP accepted appellant’s claim for right calf sprain. It based its termination of
appellant’s wage-loss compensation and medical benefits effective February 4, 2018 on the
September 8 and November 11, 2017 reports of Dr. Fitzgerald, an OWCP referral physician.
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Fitzgerald. The opinion of Dr. Fitzgerald establishes that
appellant had no disability due to her December 29, 2014 employment injury after
February 4, 2018.
In September 8 and November 11, 2017 reports, Dr. Fitzgerald detailed the findings of the
physical examination he conducted on September 8, 2017. He noted that appellant had an apparent
sensory abnormality in her right lower extremity with increased sensation to light touch in her
lateral calf, loss of sensation to light touch in the dorsum of her right foot, and tenderness
associated with multiple scars on the plantar aspect of her right foot. Dr. Fitzgerald diagnosed
right calf strain, sciatic neuropathy plus metabolic bilateral peripheral neuropathy, arterial
insufﬁciency in the right lower extremity, status post angioplasty and stent insertion, status post
incision and drainage of right foot abscess, and lumbar spondylosis. He opined that appellant’s
December 29, 2014 right calf sprain/strain had resolved and noted that no objectively verifiable
7

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

8

Id.

9

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

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residual damage to the right calf muscle was present upon physical examination. Dr. Fitzgerald
opined that the right foot numbness/tingling appellant developed on December 29, 2014
constituted only a temporary aggravation of her preexisting right sciatic neuropathy and metabolic
peripheral neuropathy condition, each of which had returned to its preinjury status.10 He indicated
that the surgical scarring related to appellant’s nonwork-related right foot abscess and the
preexisting nonwork-related neuropathic condition of her right lower extremity caused appellant
to be permanently limited to sedentary light duty.11
The Board has reviewed the opinion of Dr. Fitzgerald and notes that it has reliability,
probative value, and convincing quality with respect to its conclusions regarding the relevant issue
of the present case. Dr. Fitzgerald provided a thorough factual and medical history and accurately
summarized the relevant medical evidence.12 He provided medical rationale for his opinion by
explaining that appellant had no longer had any objective signs of her employment-related right
calf sprain and that her continuing right lower extremity problems were due to nonwork-related
conditions, including surgical scarring related to her right foot abscess and the preexisting
neuropathy of her right lower extremity.13
After receiving OWCP’s notice of proposed termination, appellant submitted two
December 7, 2017 reports of Dr. Czerwein. However, these reports are of limited probative value
regarding appellant’s employment-related residuals because Dr. Czerwein did not provide a
rationalized medical opinion that appellant continued to have residuals of her December 29, 2014
right calf sprain. The Board has held that a report is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining how an employment activity could
have caused or aggravated a medical condition.14
In one of the December 7, 2017 reports, Dr. Czerwein indicated that appellant had
tenderness over the lumbar spine and right calf upon physical examination, and he diagnosed
sciatic neuropathy, piriformis-type syndrome, lumbalgia, and right calf pain. However,
Dr. Czerwein did not provide a clear opinion that appellant had residuals of her December 29,
2014 right calf sprain.15 Rather, he provided an equivocal opinion on this matter when he noted,
“I know Dr. Fitzgerald mentioned that the calf strain had healed. It is very possible. She is still
having some calf pain, but she does have a sciatic neuropathy that has been confirmed on EMG.
With this being said, there is objective evidence of pathologic significance.” The Board has held
10

Dr. Fitzgerald noted that appellant also had the preexisting conditions of arterial insufficiency of the lower
extremities and lumbar spondylosis. He did not indicate that these conditions were aggravated on December 29, 2014.
11

In a September 8, 2017 work capacity evaluation form, Dr. Fitzgerald recommended various work restrictions
due to appellant’s nonwork-related conditions.
12

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

13

The Board notes that, although Dr. Fitzgerald included the diagnosis of right calf strain in his September 8, 2017
report, he was unequivocal in expressing his opinion that the December 29, 2014 right calf sprain had resolved.
14

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

15
The Board notes appellant’s case has not been accepted for a lumbar condition or sciatic neuropathy in the right
lower extremity.

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that an opinion which is equivocal in nature is of limited probative value regarding the issue of causal
relationship.16 In another December 7, 2017 report, Dr. Czerwein expressed his belief that
appellant still had neurologic symptoms in her right lower extremity. He also indicated that
appellant continued to have evidence of right calf pain. However, this report is of limited probative
value because Dr. Czerwein did not provide a rationalized medical opinion that appellant’s right
calf pain was caused by the December 29, 2014 employment injury as opposed to some nonworkrelated condition.17
For these reasons, the Board finds that OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective February 4, 2018.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates appellant’s compensation benefits, the burden shifts to
the claimant to establish that he or she has continuing disability after that date related to the
accepted injury.18 To establish causal relationship between an accepted condition and any
attendant disability claimed, an employee must submit rationalized medical evidence based on a
complete medical and factual background supporting such causal relationship.19 Causal
relationship is a medical issue and the medical evidence required to establish causal relationship
is rationalized medical evidence.
ANALYSIS -- ISSUE 2
After OWCP’s January 8, 2018 termination decision, appellant submitted additional
medical evidence which she felt showed that she was entitled to compensation after February 4,
2018 due to residuals of her December 29, 2014 employment injury. Given that the Board has
found that OWCP properly relied on the opinion of OWCP’s referral physician, Dr. Fitzgerald, in
terminating appellant’s compensation, effective February 4, 2018, the burden shifts to appellant to
establish that she is entitled to compensation after that date.20 The Board has reviewed the
additional evidence submitted by appellant and finds that it is not of sufficient probative value to
establish that she had disability or residuals of her accepted December 29, 2014 employment injury
after February 4, 2018.
Appellant submitted a January 22, 2018 narrative report from Dr. Czerwien who indicated
that appellant was “still having work-related right lower extremity sciatic neuropathy.” However,
this report is of limited probative value regarding whether employment-related residuals continued
after February 4, 2018 because Dr. Czerwein did not provide any medical rationale in support of
his opinion on causal relationship. The Board again notes that appellant’s case has not been
16

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956).

17

See supra note 14.

18

Manuel Gill, 52 ECAB 282 (2001).

19

R.D., Docket No. 16-0982 (issued December 20, 2016).

20

See supra note 9.

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accepted for a lumbar condition or sciatic neuropathy. As noted above, a report is of limited
probative value regarding causal relationship if it does not contain medical rationale explaining
how an employment activity could have caused or aggravated a medical condition.21
In a January 22, 2018 disability report, Dr. Czerwein advised that appellant was unable to
return to work until after her next medical appointment on March 22, 2018. This report is of
limited probative value regarding whether employment-related residuals continued after
February 4, 2018 because Dr. Czerwein did not provide any opinion on the cause of appellant’s
disability. The Board has held that medical evidence which does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.22
Thus, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective February 4, 2018. The Board further finds that
appellant has not established continuing disability after February 4, 2018 causally related to her
accepted December 29, 2014 employment injury.

21

See supra note 14.

22

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the March 30, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.O., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, RESERVOIR REGULATION &
WATER QUALITY SECTION, Portland, OR,
Employer
__________________________________________

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

Docket No. 15-0957
Issued: April 1, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 25, 2015 appellant filed a timely appeal from a December 3, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 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 modify the loss of wageearning capacity (LWEC) determination.
On appeal appellant argues that the position of information clerk is not suitable as it
involves sitting, reaching, and handling duties that are beyond her capabilities. She contends that
she was unable to finish her schoolwork due to cervical issues. Appellant also argues that she
1

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5 U.S.C. § 8101 et seq.

has hearing loss which would interfere with her ability to deal with the public. Finally, she
challenges OWCP’s evaluation of the medical evidence and argues that there is no guarantee that
she will not have a relapse if she returns to work.
FACTUAL HISTORY
This case has previously been before the Board. On July 26, 1991 appellant, then a 37year-old hydrological technician, filed an occupational disease claim (Form CA-2) alleging that
as a result of working the keyboard with her right hand she suffered numbness and tingling
sensation in her right hand and pain in her neck. On June 7, 1991 OWCP accepted appellant’s
claim for spondylosis with myelopathy, phlebitis and thrombophlebitis of deep vessels of lower
extremity, and peripheral vascular complications. On September 9, 1991 it also accepted
appellant’s claim for carpal tunnel syndrome and sprain of the neck. Appellant stopped work on
May 15, 1992 when she experienced an increase of right hand/wrist symptomology. She
returned to modified work in September 1992. On May 30, 1996 appellant was restricted from
regular or modified work and did not return to her federal employment. OWCP paid medical
and wage-loss compensation benefits.
Appellant participated in vocational rehabilitation. In an October 12, 2005 report, the
vocational rehabilitation counselor found that appellant was capable of working as an
information clerk. He noted that appellant had completed one year of clerical and businessrelated training at Clackamas Community College and had a high school diploma. The
vocational rehabilitation counselor noted restrictions of no overhead work, lifting no more than
two pounds with her right arm, and no repetitive flexion/extension or rotational motions of her
cervical spine. He noted that the physical demands of an information clerk were sedentary and,
therefore, within her restrictions. The vocational rehabilitation counselor noted that the job was
performed in sufficient numbers in appellant’s commuting labor market area so as to be
considered reasonably available.
In an October 11, 2005 report, Dr. Eric W. Long, appellant’s treating Board-certified
physiatrist, noted that appellant could not sit for more than 30 minutes at a time or for more than
4 hours a day, stand for more than 15 minutes at a time or more than 30 minutes a day, and walk
for more than 15 minutes at a time or 1 hour per day. Dr. Long opined that appellant was not
physically capable of performing the work of an information clerk based on her tolerances for
sitting, standing, and walking.
On July 17, 2006 OWCP proposed reducing appellant’s compensation based on her
ability to earn wages as an information clerk. It noted that the Department of Labor’s Dictionary
of Occupational Titles (DOT) describes the position of information clerk as follows:
“Answers inquiries from persons entering establishment: Provides information
regarding activities conducted at the establishment, and location of departments,
offices, and employees within the organization. Informs customer of location of
store merchandise in retail establishment. Provides information concerning
services, such as laundry and valet services, in hotel. Receives and answers
requests for information from company officials and employees. May call

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employees or officials to information desk to answer inquiries. May keep record
of questions as asked.”
OWCP noted that the position was classified as sedentary in nature, with occasional lifting of up
to one pound or exerting negligible force in pushing or pulling. It noted that the position
primarily involves sitting which can be alternated with standing and walking, and that reaching
and handling are required occasionally. OWCP noted that talking, hearing, and near visual
acuity are performed frequently. It afforded appellant 30 days to submit any evidence or
argument regarding her ability to earn wages in the position of information clerk. Appellant did
not timely respond.
By decision dated August 21, 2006, OWCP finalized its proposed reduction of
appellant’s compensation benefits, effective August 21, 2006, based on the constructive LWEC
position of an information clerk.
Appellant requested modification of the LWEC and submitted an October 18, 2007 report
from Dr. Long, who noted that appellant continued to be symptomatic, in spite of activity
restrictions, and continued to have signs and symptoms of cervical spondylosis, with cervical
radiculitis and cervical myelopathy. Dr. Long indicated that he had no doubt that her symptoms
would progress rapidly if she attempted competitive employment. He noted that appellant was
restricted from regular/modified work from August 2, 2006 through November 18, 2008.
By decision dated February 12, 2009, OWCP denied appellant’s request for modification
of the LWEC decision. Appellant, through counsel, requested an oral hearing before an OWCP
hearing representative.
In a decision dated September 22, 2009, the hearing representative remanded the case for
further development as to whether there was a material worsening of the cervical spine that
would prevent appellant from performing the information clerk duties.
On October 26, 2009 OWCP referred appellant to Dr. Darrell Weinman, a Boardcertified orthopedic surgeon, for a second opinion. In a November 13, 2009 report,
Dr. Weinman diagnosed bilateral carpal tunnel syndrome postoperative status bilateral carpal
tunnel releases, cervical sprain, and cervical spondylosis with myopathy. He opined that
appellant’s cervical spondylosis should not prevent her from performing at sedentary strength
and the occasional handling and reaching required in the position of information clerk. In the
work capacity evaluation, Dr. Weinman noted two-hour limitations on wrist movements,
pushing, and pulling.
By decision dated January 4, 2010, OWCP denied modification of the August 21, 2006
LWEC determination.
Appellant requested a review of the written record on February 4, 2010 and submitted a
medical report dated February 1, 2010 by Dr. Long. Dr. Long opined that it was clear that
appellant’s cervical condition had worsened from 1999 to 2003, from 2003 to 2006, and from
2006 to 2008. He diagnosed upper extremity pain and numbness, onset early 1980s, with median
lesions, palms, decompressed, ulnar neuropathy elbows right greater than left, no radial
neuropathy proximal forearms or elbows, imaging evidence of right C4-5 disc herniation with
3

lateral recess/foraminal stenosis, symptomatic, C6-7 disc bulge, and bilateral C7 radiculitis right
greater than left. Dr. Long noted that appellant did not have the sitting tolerance to function
fulltime as an information clerk. He also noted that appellant had sustained bilateral
sensorineural hearing loss which compromised her ability to function. Dr. Long discussed
Dr. Weinman’s report and noted that he had not addressed sensory disturbance in the upper
limbs, hyperreflexia in the upper or lower limbs, or limitation of motion in the shoulder girdles.
He also noted that Dr. Weinman documented marked limitation of cervical mobility and
described a positive Waddell’s sign that had not previously been described by Dr. Weinman.
Finally, Dr. Long noted that Dr. Weinman completed an estimate of physical capacities that was
grossly inconsistent with appellant’s actual physical capacities. He opined that appellant was
restricted from regular/modified work from June 18, 2009 through June 1, 2010.
By decision dated March 1, 2010, OWCP’s Branch of Hearings and Review denied
appellant’s request for review of the written record as untimely as it was not filed within 30 days
following the issuance of the January 4, 2010 OWCP decision.
On January 26, 2011 appellant requested reconsideration “of my reduced benefits,” and
argued that she was not able to work as an information clerk. By decision dated February 8,
2011, OWCP denied appellant’s request for reconsideration as it was untimely filed and failed to
establish clear evidence of error.
Appellant filed an appeal with the Board on June 28, 2011 under Docket No. 11-1607. In
an April 23, 2012 decision, the Board found that, while appellant used the term reconsideration
in her January 26, 2011 request, she implicitly asserted that the medical evidence established that
her employment-related condition had worsened and that she could not tolerate a position as an
information clerk. Thus, the Board found that OWCP should have developed the claim as a
request for modification of her wage-earning capacity.2 The facts as set forth in the Board’s
prior decision are hereby incorporated by reference.3
Upon remand, OWCP reviewed the evidence under the proper standard of proof and, by
decision dated August 21, 2012, denied modification of the LWEC determination.
On August 19, 2013 appellant requested “reconsideration for modification” of the
August 21, 2006 LWEC decision. In a letter in support of her reconsideration request, she
argued that the position of information clerk was not suitable and that the LWEC determination
should be reversed. Appellant noted that, at the time of the August 21, 2006 decision, after four
years of returning to her position as a hydrological technician, she was not able to endure the
pain of sitting at a computer for extended periods of time due to her cervical strain. She argued
that as an information clerk sits most of the time, that nowhere in the position description does it
state that an information clerk would be free to stand or walk alternated with sitting, and that no
2

Docket No. 11-1607 (issued April 23, 2012).

3

In another appeal, the Board issued a decision on September 11, 2014 wherein it found that OWCP improperly
determined that appellant forfeited her right to compensation from November 6, 1996 to December 14, 2009, and
that, therefore, OWCP’s overpayment and forfeiture decision issued on February 1, 2013 was reversed. Docket No.
13-1809 (issued September 11, 2014), petition for recon. denied (issued November 13, 2015).

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employer was going to allow an employee to get up and walk around the room at will. Appellant
also noted that she was awaiting authorization for surgery. She contended that her medicine
caused drowsiness and that she loses her balance due to her neck problems. Appellant also
discussed her hearing problems.
On October 30, 2013 appellant underwent a C5-6 anterior cervical discectomy for
decompression of spinal cord; C5-6 and C6-C7 anterior interbody arthrodesis, and anterior
instrumentation at C5, C6 and C7.
On November 13, 2013 OWCP modified the LWEC decision of August 21, 2006 finding
that the medical evidence was sufficient to establish a material worsening of her work-related
condition effective October 30, 2013, following the surgery. However, the November 13, 2013
decision denied modification of the LWEC decision prior to October 30, 2013 based on a lack of
medical evidence establishing that appellant was unable to perform the duties of an information
clerk prior to her surgery.
By letter dated October 13, 2014, appellant again requested reconsideration of the LWEC
determination. She contended that all of her medical conditions were not considered in that she
had substantial hearing loss that would interfere with her work as an information clerk.
Appellant also argued that her physicians indicated that she could not do the sitting and reaching
required for the position of information clerk.
By decision dated December 3, 2014, OWCP denied modification of the November 13,
2013 decision.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.4
Board precedent5 and OWCP procedures at Chapter 2.1501 contain provisions regarding
the modification of a formal LWEC.6 The relevant part provides that a formal LWEC will be
modified when: (1) the original rating was in error; (2) the claimant’s medical condition has
changed; or (3) the claimant has been vocationally rehabilitated.7 OWCP procedures further

4

Katherine T. Kreger, 55 ECAB 633 (2004); see also M.S., Docket No. 15-520 (issued May 19, 2015).

5

See, e.g., G.E., Docket No. 14-1588 (issued May 12, 2015); D.M., Docket No. 11-1549 (issued June 21, 2012).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
7

Id. at Chapter 2.1501.3(a) (June 2013); see also supra note 5.

5

provide that the party seeking modification of a formal LWEC decision has the burden to prove
that one of these criteria has been met.8
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background of reasonable medical certainty, and supported by medical
rationale explaining the decision.9
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.10 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.11
ANALYSIS
The Board finds that this case is not in posture for decision due to an unresolved conflict
in the medical evidence.
Appellant contends that her LWEC determination, as set forth in the August 21, 2006
OWCP decision, should be modified as the original rating was in error. She also contends that
her employment accepted conditions have changed, i.e., worsened, since the original LWEC
decision.
The Board rejects appellant’s allegation that she could sustain further injury if she
worked as an information clerk. A fear of future injury is not compensable under FECA.12
Furthermore, appellant’s argument that the position was not suitable due to her hearing issues is
without merit. In determining an employee’s LWEC based on a position defined as suitable, but
not actually held, OWCP must consider the degree of physical impairment, including
impairments from both injury-related and preexisting conditions, but not impairments resulting
from postinjury or subsequently acquired conditions.13 Any incapacity to perform the duties of
the selected position resulting from subsequently acquired conditions is immaterial to the loss of
wage-earning capacity that can be attributed to the accepted employment injury for which
appellant may receive compensation.14 There is no evidence that appellant’s hearing was
8

Id. at Chapter 2.1501.4 (June 2013); see also supra note 5.

9

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

12

Manuel Gill, 52 ECAB 282, 286 n.5 (2001).

13

D.S., Docket No. 13-1397 (issued May 23, 2014).

14

James Henderson, Jr., 51 ECAB 619 (2000).

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significantly impaired prior to her accepted employment injury. Therefore, any difficulty that
appellant may have in hearing is not to be considered in determining appellant’s LWEC.
The Board finds that at the time that OWCP issued the August 21, 2006 decision finding
that appellant’s LWEC was based on her ability to perform the duties of information clerk,
Dr. Long, appellant’s treating physician, opined that appellant was not physically capable of
performing the work of an information clerk based on her tolerances for sitting, standing, and
walking. On October 18, 2007 Dr. Long indicated that appellant was restricted from
regular/modified work from August 2, 2006 through November 18, 2008, noting signs of
cervical spondylosis with cervical radiculitis and cervical myelopathy.
In a September 22, 2009 decision, an OWCP hearing representative determined that the
opinions of Dr. Long established a prima facie case and that a second opinion was necessary.
On remand, OWCP referred appellant to Dr. Weinman. Dr. Weinman opined that appellant’s
cervical spondylosis should not prevent her from performing sedentary strength and occasional
handling and reaching required for the position of information clerk. In a February 1, 2010
medical opinion, Dr. Long strenuously disagreed with Dr. Weinman’s conclusion. He noted,
inter alia, that appellant did not have the sitting tolerance to function full time as an information
clerk; that nothing in Dr. Weinman’s report indicated that he recognized that she had sensory
disturbance in her upper limbs, hyperreflexia in the upper or lower limbs, or limitation of
shoulder girdles; and that Dr. Weinman’s estimate of appellant’s physical capabilities was
grossly inconsistent with appellant’s actual physical capacities. Dr. Long indicated that appellant
remained restricted from work.
The conflict in the medical evidence between appellant’s treating physician, Dr. Long,
who opined that appellant was unable to work as an information clerk, and the physician who
performed a second opinion for OWCP, Dr. Weinman, who opined that appellant was able to
work as an information clerk was not resolved. Therefore, there remains an unresolved conflict
in the medical evidence with regard to appellant’s ability to work as an information clerk.15
The Board finds that the relevant evidence with regard to whether appellant could
perform the duties of an information clerk to be in equipoise. It is well established that where
there exist opposing medical reports of virtually equal weight and rationale, the case should be
referred to an impartial medical specialist for the purpose of resolving the conflict.16 The Board
will remand the case to OWCP for proper selection of a referee physician. After such further
development as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision due to an unresolved conflict
in the medical evidence.

15

See M.M., Docket No. 07-2135 (issued November 25, 2008) (the Board remanded as OWCP had not waited for
the opinion of the impartial medical examiner prior to issuing its opinion).
16

See Darlene R. Kennedy, 57 ECAB 414, 416 (2006); see also 5 U.S.C. § 8123(a).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 13, 2014 is set aside and the case is remanded for
further proceedings consistent with this opinion of the Board.
Issued: April 1, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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

Docket No. 20-0346
Issued: July 8, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 2, 2019 appellant filed a timely appeal from a November 20, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On April 26, 2018 appellant, then a 57-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 20, 2018 she sustained injuries to her right ankle, right hip,
and right upper side of her body when she tripped over a hand truck bed while in the performance
of duty. On April 23, 2018 she was released to modified-duty work. OWCP accepted her claim
for “strain of unspecified muscle, fascia and tendon at shoulder and upper arm level, right arm,
initial encounter.”
On January 29 and April 4, 2019 appellant filed a claim for a schedule award (Form CA-7)
and submitted progress reports and office visit notes dated January 29 to April 22, 2019 by
Dr. Gordon Avery, a Board-certified orthopedic surgeon. Dr. Avery recounted that she still
complained of pain and weakness in her right shoulder due to an April 20, 2018 employment
injury. Upon examination of the right shoulder, he observed full range of motion (ROM) and no
acromioclavicular (AC) joint tenderness. Speed’s and impingement signs were positive.
Dr. Avery diagnosed right shoulder impingement syndrome, partial tear of the right rotator cuff,
tendinopathy of the right biceps tendon, osteoarthritis of the right glenohumeral joint, and Hill
Sachs deformity.
In a development letter dated April 12, 2019, OWCP requested that appellant submit an
impairment evaluation from her physician addressing whether she had reached maximum medical
improvement (MMI) and evaluating the extent of permanent impairment, if any, in accordance
with the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).3 It afforded her 30 days to submit the requested information.
By decision dated July 26, 2019, OWCP denied appellant’s schedule award claim finding
that she had not submitted medical evidence to establish permanent impairment of a scheduled
member or function of the body, warranting a schedule award.
On August 15, 2019 appellant requested reconsideration. She noted that she had relevant
evidence to show that her April 20, 2018 employment injury was ongoing and that she had reached
MMI.
In support of her request, appellant submitted a March 12, 2019 letter from Dr. Avery, who
recounted that he had treated her since November 27, 2018 for a work injury sustained on
April 20, 2018. Dr. Avery noted that she had been managed conservatively, but may require
surgery. He reported diagnoses of right shoulder impingement syndrome, partial tear of the right
rotator cuff, right biceps tendon tendinopathy, right glenohumeral joint osteoarthritis, and Hill
Sachs deformity. In progress reports dated March 12 to September 17, 2019, Dr. Avery provided
examination findings and reiterated the diagnosed conditions. In an April 22, 2019 progress note,
he indicated that appellant had reached MMI.

3

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

2

In a July 2, 2019 note, Dr. Avery again indicated that appellant had reached MMI on
April 22, 2019. He opined, however, that there was no permanent partial impairment on the basis
of this injury.
OWCP also received duty status reports (Forms CA-17) dated April 1 and September 17,
2019 by Dr. Avery, who indicated that appellant could work modified duty.
By decision dated November 20, 2019, OWCP denied modification of the July 26, 2019
decision.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage of loss of a member shall be
determined. For consistent results and to ensure equal justice, the Board has authorized the use of
a single set of tables so that there may be uniform standards applicable to all claimants. 6 For
schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the
A.M.A., Guides, published in 2009.7 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.8
A claimant has the burden of proof under FECA to establish permanent impairment of a
scheduled member or function of the body as a result of his or her employment injury entitling
him or her to a schedule award.9 Before the A.M.A., Guides can be utilized a description of
impairment must be obtained from his or her physician. In obtaining medical evidence required
for a schedule award, the evaluation made by the attending physician must include a description
of the impairment including, where applicable, the loss in degrees of active and passive motion of
the affected member or function, the amount of any atrophy or deformity, decrease in strength or
disturbance of sensation or other pertinent descriptions of the impairment. This description must
be in sufficient detail so that the claims examiner and others reviewing the file will be able to
clearly visualize the impairment with its resulting restrictions and limitations.10
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also id. Chapter 3.700.2 and Exhibit 1 (January 2010).
8

D.S., Docket No. 18-1140 (issued January 29, 2019); Isidoro Rivera, 12 ECAB 348 (1961).

9

See M.G., Docket No. 19-0823 (issued September 17, 2019); D.F., Docket No. 18-1337 (issued February 11,
2019); Tammy L. Meehan, 53 ECAB 229 (2001).
10

K.F., Docket No. 18-1517 (issued October 9, 2019); A.T., Docket No. 18-0864 (issued October 9, 2018).

3

OWCP’s procedures provide that, to support a schedule award, the file must contain
competent medical evidence which shows that the impairment has reached a permanent and fixed
state and indicates the date on which this occurred (date of MMI), describes the impairment in
sufficient detail so that it can be visualized on review, and computes the percentage of impairment
in accordance with the A.M.A., Guides.11 If the claimant does not provide an impairment
evaluation, “and there is no indication of permanent impairment in the medical evidence of file,
the CE [claims examiner] may proceed with a formal denial of the award.”12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In support of her schedule award claim, appellant submitted medical reports, letters, and
Form CA-17 reports from Dr. Avery dated January 29 to September 17, 2019. Dr. Avery noted
her continued complaints of right shoulder pain and weakness after an April 20, 2018 job injury.
He provided examination findings and diagnosed right shoulder impingement syndrome, partial
tear of the right rotator cuff, right biceps tendon tendinopathy, right glenohumeral joint
osteoarthritis, and Hill Sachs deformity. In an April 22, 2019 progress note and July 2, 2019 letter,
Dr. Avery indicated that appellant had reached MMI. Although he opined that she had reached
MMI, he did not describe a permanent impairment due to her accepted April 20, 2018 employment
injury.13 As noted, an impairment evaluation made by the attending physician must include a
description of the impairment including, where applicable, the loss in degrees of active and passive
motion of the affected member or function, the amount of any atrophy or deformity, decrease in
strength or disturbance of sensation or other pertinent descriptions of the impairment. This
description must be in sufficient detail so that the claims examiner and others reviewing the file
will be able to clearly visualize the impairment with its resulting restrictions and limitations.14
The Board finds that none of the medical reports submitted are sufficient to establish
permanent impairment of a scheduled member or function of the body causally related to the
April 20, 2018 employment injury.15 The medical reports of record do not describe appellant’s
impairment in sufficient detail so that it can be visualized on review and do not compute a
percentage of impairment in accordance with the A.M.A., Guides.16 Accordingly, the Board finds
that appellant has not met her burden of proof to establish her schedule award claim.

11

Supra note 7 at Chapter 2.808.5 (March 2017).

12

Id., at Chapter 2.808.6(c) (March 2017).

13

See K.J., Docket No. 19-1492 (issued February 26, 2020); see also D.F., supra note 9.

14

Supra note 10.

15

See C.T., Docket No. 18-0257 (issued May 21, 2019).

16

Supra note 11.

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Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 8, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0728
Issued: October 21, 2020

Case Submitted on the Record

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

On February 13, 2020 appellant filed a timely appeal from a January 13, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 20-0728.
This case has previously been before the Board.1 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On October 14, 2008 appellant, then a 41-year-old part-time flex carrier, filed a notice of
traumatic injury claim (Form CA-1) alleging that she sustained neck and back injuries when a
truck backed into her parked postal vehicle on October 11, 2008, while in the performance of duty.
OWCP assigned the claim OWCP File No. xxxxxx712 and, by decision dated November 28, 2008,
accepted the claim for cervical and lumbar sprains. Appellant stopped work intermittently and
OWCP paid her wage-loss compensation on the supplemental rolls.
On November 10, 2011 appellant filed a second Form CA-1 alleging that her postal vehicle
was rear ended while she was stopped at a traffic light and she sustained a cervical injury on
1

Docket No. 18-1621 (issued August 23, 2019).

November 8, 2011, while in the performance of duty. OWCP assigned that claim, OWCP File No.
xxxxxx371, and by decision dated December 28, 2011, accepted it for cervical strain. Appellant
stopped work intermittently and OWCP paid her wage-loss compensation on the supplemental
rolls.
On December 13, 2017 appellant requested that the acceptance of her claims be expanded
to include consequential pinched nerves of the back and neck as causally related to her two prior
work-related motor vehicle accidents. She further requested that OWCP File Nos. xxxxxx712 and
xxxxxx371 be administratively combined.
In a letter dated January 17, 2018, OWCP notified appellant that OWCP File Nos.
xxxxxx712 and xxxxxx371 were administratively combined, with the former assigned as the
master file.
In a letter dated February 5, 2018, appellant again requested that OWCP expand the
acceptance of her claims to include the consequential conditions of lumbosacral radiculopathy,
lumbosacral spondylosis, and cervical radiculopathy.
By decision dated March 22, 2018, OWCP denied expansion of appellant’s claims to
include consequential conditions.
On April 23, 2018 appellant requested reconsideration and submitted additional evidence
in support of her claim.
By decision dated July 18, 2018, OWCP denied modification of the March 22, 2018
decision finding that the medical evidence of record was insufficient to establish that appellant’s
claimed consequential lumbosacral radiculopathy, lumbosacral spondylosis, and cervical
radiculopathy were causally related to her accepted October 11, 2008 and November 8, 2011
employment injuries.
On August 23, 2018 appellant filed an appeal before the Board.
By decision dated August 23, 2019, the Board affirmed the July 18 and March 22, 2018
OWCP decisions, finding that appellant had not met her burden of proof to establish consequential
lumbar and cervical conditions causally related to the accepted October 11, 2008 and November 8,
2011 employment injuries.
On December 24, 2019 appellant requested reconsideration of the August 23, 2019
decision and submitted additional medical evidence in support of her claim.2 The request was
dated December 12, 2019 and postmarked on December 21, 2019.

2

The record reflects that three separate OWCP decisions were also issued on August 23, 2019, which denied
appellant’s requests for authorization of medical procedures and denied her claim for a recurrence on
February 26, 2019. In a January 10, 2020 CA-110 telephone memorandum, the claims examiner requested that she
stipulate, which August 23, 2019 decision she was requesting reconsideration. Appellant clarified that she was
requesting reconsideration for the decision denying expansion of her claim for additional medical conditions, noting
that she had been diagnosed with a new condition.

2

By decision dated January 13, 2020, OWCP denied appellant’s request for reconsideration
of the merits of her claim finding that the request was untimely filed and failed to demonstrate
clear evidence of error. It noted that appellant’s December 24, 2019 reconsideration request was
not made within one year of the last merit decision on July 18, 2018.
The Board, having duly reviewed the record on appeal, finds that the case must be
remanded to OWCP for application of the appropriate standard of review because appellant’s
request for reconsideration was timely filed.3
A request for reconsideration must be received by OWCP within one year of the date of a
merit review of the claim, including any merit review by the Board.4 The last merit decision of
record was the Board’s August 23, 2019 decision affirming OWCP’s denial of her expansion
claim. As appellant’s reconsideration request was received on December 24, 2019, within one
year of the Board’s August 23, 2019 merit decision, the Board finds that the request was timely
filed.5
OWCP applied the clear evidence of error legal standard in reviewing appellant’s request
for reconsideration.6 This standard is the appropriate standard only for cases in which a
reconsideration request is untimely filed.7 Since OWCP erroneously reviewed the evidence
submitted by appellant in support of her reconsideration request under the clear evidence of error
standard, the Board will remand the case to OWCP for application of the standard for reviewing a
timely request for reconsideration as set forth at 20 C.F.R. § 10.606(b)(3).8
Thus, the Board finds that the case must be remanded for proper adjudication and
application of the appropriate standard of review, to be followed by an appropriate decision.

3

T.L., Docket No. 19-1110 (issued August 11, 2020).

4

R.T., Docket No. 20-0298 (issued August 6, 2020); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4(a) (February 2016).
5

S.H., Docket No. 18-1685 (issued August 15, 2019).

6

C.D., Docket No. 17-1074 (issued August 28, 2017); A.M., Docket No. 16-1250 (issued December 20, 2016).

7

See V.M., Docket No. 18-1184 (issued July 10, 2019); Donna M. Campbell, 55 ECAB 241 (2004).

8

P.J., Docket No. 19-0962 (issued December 30, 2019).

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IT IS HEREBY ORDERED THAT the January 13, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: October 21, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Chicago, IL, Employer
__________________________________________

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

Docket No. 14-1698
Issued: January 7, 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 August 1, 2014 appellant, through counsel, filed a timely appeal from a June 13, 2014
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 his burden of proof to establish an injury in the
performance of duty.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 31, 2011 appellant, then a 61-year-old pipefitter and plumber, filed an
occupational disease claim (Form CA-2) alleging that he developed lung cancer as a result of
exposure to asbestos at the employing establishment while in the performance of duty.
In a June 24, 2011 letter, OWCP notified appellant of the deficiencies of his claim and
requested additional factual and medical evidence. It requested a comprehensive medical report
from a treating physician containing a diagnosis of his condition and an explanation of how the
alleged work exposure caused or aggravated his claimed condition. OWCP afforded appellant
30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a position description and an April 14, 2010 report from Dr. Nitin
Jain, a Board-certified oncologist, who diagnosed squamous cell carcinoma of the lung. Dr. Jain
indicated that appellant had a mass in the right upper lobe of the lung. He noted that appellant
had a 20 pack a year history of smoking, worked as a pipefitter for the employing establishment
but previously worked for the Navy. Dr. Jain stated that appellant was “concerned about going
back to work in an environment which he thinks is full of asbestos/dust.”
On May 12, 2010 appellant underwent surgery for his right upper lobe lung cancer
performed by Dr. Wickii Vigneswaran, a Board-certified thoracic surgeon.
In an August 18, 2011 letter, the employing establishment controverted appellant’s claim
on the basis that he had not worked in areas that may have contained asbestos, abatement was
performed by contractors and not employees, and testing was due before they began removal of
the asbestos. The employing establishment submitted testing results from 1995 and 1996.
In a letter dated October 27, 2011, the employing establishment indicated that an
occupational illness evaluation for appellant was conducted by Kristen Edwards, an industrial
hygienist. Documentation showed that appellant was a pipefitter and plumber with the
employing establishment from 1993 to 2010. His duties included working with piping located
above the ceiling and in confined areas in routine and emergency situations. In the event of an
emergency line break, asbestos containing material (ACM) posed a minimal potential for
inhalation exposure due to the wet method inhibiting airborne contaminations. Although some
pipes may have contained asbestos, if the material was not disturbed and no fugitive dust was
generated, the likelihood of inhalation was very minimal. Additionally, employees were advised
to wear a particulate respirator when working above the ceiling and suspected ACM was present.
By decision dated November 18, 2011, OWCP denied the claim on the basis that
appellant failed to establish fact of injury. It found that the evidence was not sufficient to
establish that he was exposed to asbestos or any other agent during the course of his federal
employment.
On November 28, 2011 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative and submitted a July 15, 2011 computerized tomography scan of
the chest and upper abdomen, which revealed an interval increase in the right paratracheal lymph
node.

2

A telephonic hearing was held before an OWCP hearing representative on
March 15, 2012.
Appellant submitted an August 20, 2010 chest x-ray, which showed bilateral interstitial
fibrosis consistent with asbestosis and blunting of the costophrenic angle consistent with
asbestos-related pleural disease. He also submitted pulmonary function analyses dated
March 31, 2010 and June 23, 2011.
In an April 5, 2011 report, Dr. Alvin Schonfeld, a Board-certified pulmonologist, did not
conduct a physical examination of appellant, but reviewed his medical records and found that he
worked for the Navy from 1968 to 1971 and American Invesco Realty from 1973 to 1977.
Dr. Schonfeld determined that appellant had been exposed to asbestos during his employment
and concluded that this exposure contributed to the development of his lung cancer.
By decision dated May 18, 2012, the hearing representative affirmed the November 18,
2011 decision.
On May 31, 2012 appellant, through counsel, requested reconsideration and submitted a
series of reports, including an April 6, 2012 report from Dr. Ravi Salgia, a Board-certified
oncologist, who indicated that appellant did not know if there was asbestos in the pipes or in any
other material, but that he may have been exposed to asbestos from 1969 to 1971 while
employed as a Naval boatswain’s mate. Regarding his position as a pipefitter for the employing
establishment from 1993 to 2010, he stated that he was provided a “[physician’s] facemask” and
that particles from pipe insulation would potentially still “get in his mouth” while cutting pipes.
Appellant further suggested that there may have been exposure to asbestos from the ground and
dirt spaces (crawl space, ceilings).
In a report dated April 26, 2012, Dr. Clara Schroedl, a Board-certified pulmonologist,
indicated that appellant’s diagnostic testing did not have evidence of asbestos-related lung
disease (not pleural plaques, effusion, interstitial lung disease). Dr. Schroedl explained that if his
first exposure to asbestos was in 1993, it may have been too early to see asbestosis as the typical
latency was 20 to 30 years.
By decision dated June 13, 2014, OWCP denied modification of the May 18, 2012
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury3 was sustained in the performance of duty. These
2

Id.

3

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).

3

are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.6
ANALYSIS
Appellant alleged that he developed lung cancer as a result of being exposed to asbestos
at work. The Board finds that he has not established the factual element of his claim that he
experienced an employment-related exposure to asbestos.
The record establishes that appellant worked for the Navy from 1968 to 1971, American
Invesco Realty from 1973 to 1977, and the employing establishment from 1993 to 2010. There
is no evidence to establish that he was exposed to asbestos during his work as a pipefitter and
plumber with the employing establishment from 1993 to 2010. In an August 18, 2011 letter, the
employing establishment indicated that appellant had not worked in areas that may have
contained asbestos. It noted that abatement was performed by contractors and not employees
and testing was done before they began removal of the asbestos.
In a letter dated October 27, 2011, the employing establishment explained that an
occupational illness evaluation for appellant was conducted by Ms. Edwards, an industrial
hygienist. Documentation showed that appellant was a pipefitter and plumber with the
employing establishment from 1993 to 2010. His duties included working with piping located
above the ceiling and in confined areas in routine and emergency situations. Asbestos containing
material posed a minimal potential for inhalation exposure due to the wet method inhibiting
airborne contaminations in the event of an emergency line break, and although some pipes may
have contained asbestos, if the material was not disturbed and no fugitive dust was generated, the
4

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

5

See D.R., Docket No. 09-1723 (issued May 20, 2010). See Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
6

See O.W., supra note 4.

4

likelihood of inhalation was very minimal. Additionally, employees were advised to wear a
particulate respirator when working above the ceiling and suspected ACM was present.
On April 6, 2012 Dr. Salgia indicated that appellant did not know if there was asbestos in
the pipes or any other material he worked with, but that he may have been exposed to asbestos
from 1969 to 1971 while employed as a Naval boatswain’s mate. Regarding his position as a
pipefitter for the employing establishment from 1993 to 2010, appellant stated that he was
provided a “[physician’s] facemask” and that particles from pipe insulation would potentially
still “get in his mouth” while cutting pipes. Appellant further suggested that there may have
been exposure to asbestos from the ground and dirt spaces (crawl space and ceilings). He was
unable to identify the actual source or specific nature of the substances, which he believed
caused his lung cancer. The Board finds that appellant has failed to provide sufficient factual
evidence to support his exposure to any precise asbestos, dust, or other irritant while working at
the employing establishment.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment, nor his belief that his condition was caused by his employment, is sufficient to
establish causal relationship.7 Since he failed to establish the first component of fact of injury, it
is not necessary to discuss whether he submitted medical evidence sufficient to establish that a
medical condition existed and whether the condition was causally related to the employment
factors alleged.8
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. For the
reasons stated above, the Board finds that counsel’s arguments are not substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty.

7

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Bonnie A. Contreras, 57 ECAB 364, 368 n.10 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the June 13, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chelsea, MA, Employer
__________________________________________

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Appearances:
John L. DeGeneres, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0803
Issued: November 4, 2020

Case Submitted on the Record

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

JURISDICTION
On February 28, 2020 appellant, through counsel, filed a timely appeal from a February 20,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). By order dated October 30, 2020, the Board exercised its discretion and denied the request,
finding that the arguments on appeal could adequately be addressed in a decision based on the case record. Order
Denying Request for Oral Argument, Docket No. 20-0803 (issued October 30, 2020).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish right hip
osteoarthritis causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On November 2, 2017 appellant, then a 51-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed right hip osteoarthritis due to factors of his
federal employment. He indicated that he first became aware of his condition and its relationship
to his federal employment on May 8, 2017. Appellant did not stop work.
In his April 3, 2017 narrative statement, appellant noted that he had worked at the
employing establishment for 24 years and performed walking routes of 10 miles a day carrying
mail satchels weighing up to 35 pounds and parcels weighing up to 70 pounds. He also had driving
routes which required him to exit and enter his vehicle approximately 200 times a day. Appellant
alleged that his job was very physical and that in the winter months he frequently slipped, tripped,
or fell.
On November 20, 2014 Dr. Kevin L. Riemer, a podiatrist, examined appellant due to a
severe reduction of motion at the first metatarsophalangeal joint of his right foot. He explained
the consequences of first metatarsal joint fusion. Appellant underwent right foot x-rays on
December 3, 2014. On February 6 and 18, 2015 Dr. Riemer examined appellant due to severe
hallux rigidus of his right foot and reviewed x-rays. Appellant underwent fusion of the first
metatarsophalangeal joint on the right on February 20, 2015. On February 27 and March 5, 2015
Dr. Riemer examined appellant following his metatarsal joint fusion. In March 18 and 24, 2015
notes, he found appellant’s incision was well healed.
On June 28, 2016 Dr. Jerina Gani, a Board-certified internist, found that appellant had
mild-to-moderate arthritis of his shoulder and mild arthritis of the right hip.
In a July 15, 2016 note, Dr. Justin W. Kung, a Board-certified radiologist, reviewed
appellant’s June 24, 2016 bilateral hip x-rays and found mild degenerative changes in the right
femoroacetabular joint space.
On May 8, 2017 Dr. Byron V. Hartunian, a Board-certified orthopedic surgeon, examined
appellant due to arthritis of the right hip and right great toe. He described appellant’s work duties
of walking 10 miles a day while carrying a 35-pound mailbag. Dr. Hartunian also noted that
appellant was required to lift packages weighing up to 70 pounds and climb in and out of his
delivery vehicle. Appellant first developed right toe pain in 2008 and underwent fusion in
February 2015. He had experienced right hip pain for five years and underwent x-rays in
June 2016. Dr. Hartunian found no palpable tenderness in the right hip and provided appellant’s
range of motion. He diagnosed right hip arthritis and first metatarsophalangeal arthrodesis of the
right great toe. Dr. Hartunian opined that appellant had degenerative osteoarthritis of his right hip
which was most likely permanently aggravated by his work activities including lifting, walking,
and climbing. He further found that appellant’s position as a letter carrier over a long career can
and did accelerate arthritis because of the continuous walking, stooping, squatting, stair climbing

2

and descending. Dr. Hartunian found that appellant’s employment activities over a period of 24
plus years had hastened his osteoarthritis. He noted that arthritis was a loss of articular cartilage
surface and that impact loading resulting from repeated local stresses caused and accelerated the
progression of arthritis through a process of chronic inflammation. Dr. Hartunian reported that the
inflammation resulted in chemical change within the cartilage resulting in less resilience and
rendering it more susceptible to the wear and tear of impact-loading activities, which in turn
resulted in an accelerated loss or articular cartilage which had happened to appellant. He opined
that appellant’s “work activities caused a permanent aggravation of his right hip osteoarthritis,
which was a permanent and irreversible alteration of his joint space.” Dr. Hartunian concluded
that there was no doubt that the high-impact loading work activities that appellant engaged in
contributed to the development and progression of his right hip arthritis.
In a January 12, 2018 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence from appellant and provided a
questionnaire for his completion. OWCP afforded him 30 days to respond.
On February 7, 2018 appellant responded to OWCP’s questionnaire and reported pain and
stiffness in his right hip for the past six years.
In an October 1, 2012 note, Dr. Gani examined appellant due to low back pain with
radiation down his right lower leg. On June 24, 2016 she described his right shoulder and hip pain.
Dr. Gani noted that appellant carried a heavy bag on his right shoulder and walked frequently at
work. Appellant underwent hip x-rays on June 24, 2016 which demonstrated mild degenerative
changes involving the right hip with the left hip appearing more normal. Dr. Gani examined him
on January 11 and 25, 2017 due to low back pain. Appellant underwent lumbar spine x-rays on
January 11, 2017. In a June 26, 2017 note, Dr. Gani reported appellant’s low back pain and right
hip pain.
By decision dated April 24, 2018, OWCP denied appellant’s occupational disease claim
finding that he had not established a causal relationship between his right hip condition and his
employment duties. It noted that he had not provided his complete medical records regarding his
right hip condition. OWCP further found that Dr. Hartunian’s opinion was speculative as he found
that appellant’s condition was most likely aggravated by his employment duties.
On May 3, 2018 appellant requested an oral hearing from an OWCP hearing representative.
In a September 27, 2018 report, Dr. Hartunian found that appellant’s employment duties
contributed to his right toe and right hip osteoarthritis. He indicated that his opinions regarding
appellant’s medical conditions were offered at a reasonable degree of medical certainty.
Counsel appeared before an OWCP hearing representative on October 25, 2018 and
contended that appellant had submitted sufficient medical opinion evidence to require further
development by OWCP.
By decision dated January 3, 2019, OWCP’s hearing representative affirmed the April 24,
2018 OWCP decision.

3

On November 20, 2019 appellant, through counsel, requested reconsideration of the
January 3, 2019 decision. Counsel again contended that the evidence submitted was sufficient to
require further development of the claim by OWCP.
In a November 12, 2019 report, Dr. Hartunian found that appellant had developed bilateral
hip arthritis. He based this conclusion on the July 15, 2016 x-ray report. Dr. Hartunian found that
appellant’s left hip arthritis was only 0.5 millimeters different from his right. He disputed that
there was a singular natural progression of arthritis and opined that appellant had an aggravated
and accelerated progression of osteoarthritis due to the hip joints being subjected to the continuous
impact loading activities of his job duties. Dr. Hartunian opined that in this instance, the natural
progression was an aggravated and accelerated progression of the osteoarthritis due to the hip
joints being subjected to the continuous impact loading activities of the appellant’s job duties.
By decision dated February 20, 2020, OWCP denied modification of its prior decisions.4
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 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.8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or

4
The Board notes that OWCP has not issued a final decision regarding any relationship between appellant’s right
toe condition and his federal employment in this claim file. Therefore, the Board will not consider this issue on appeal.
20 C.F.R. § 501.2(c).
5

Supra note 3.

6

E.W., Docket No. 19-1393 (issued January 29, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8
20 C.F.R. § 10.115; E.S., Docket No. 18-1580 (issued January 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Elliott, 41 ECAB 992 (1990).

4

condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.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 claimant.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
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that this case is not posture for a decision.
In his report dated May 8, 2017, Dr. Hartunian opined that appellant had right hip
osteoarthritis that was permanently aggravated by his work activities including walking, lifting,
and climbing. He opined that appellant’s position as a letter carrier over a long career can and did
accelerate arthritis because of the continuous walking, stooping, squatting, and climbing and
descending stairs. Dr. Hartunian found that appellant’s employment activities had hastened his
osteoarthritis. He noted that arthritis was a loss of articular cartilage surface and that impact
loading resulting from repeated local stresses caused and accelerated the progression of arthritis
through a process of chronic inflammation. Dr. Hartunian reported that the inflammation resulted
in chemical change within the cartilage resulting in less resilience and rendering it more susceptible
to the wear and tear of impact-loading activities, which in turn resulted in an accelerated loss or
articular cartilage which had happened to appellant. He opined that “work activities caused a
permanent aggravation of his right hip osteoarthritis, which was a permanent and irreversible
alteration of his joint space.” Dr. Hartunian concluded that there was no doubt that the high-impact

9

T.L., Docket No. 18-0778 (issued January 22, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
10

J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

12

E.W., supra note 6; Gary L. Fowler, 45 ECAB 365 (1994).

13
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).
R.D., Docket No. 18-1551 (issued March 1, 2019).

5

loading work activities that appellant engaged in contributed to the development and progression
of his right hip arthritis.
In his November 12, 2019 report, Dr. Hartunian opined that in this instance, the natural
progression was an aggravated and accelerated progression of the osteoarthritis due to the hip
joints being subjected to the continuous impact loading activities of the appellant’s job duties.
The Board finds that these reports from Dr. Hartunian are sufficient to require further
development of the medical evidence. Dr. Hartunian is a Board-certified physician in orthopedics
who is qualified in his field of medicine to render rationalized opinions on the issue of causal
relationship and he provided a comprehensive understanding of the medical record and case
history. His reports provide a pathophysiological explanation as to how excessive walking, lifting,
climbing and descending at work resulted in appellant’s diagnosed right hip osteoarthritis. The
Board has long held that it is unnecessary that the evidence of record in a case be so conclusive as
to suggest causal connection beyond all possible doubt. Rather, the evidence required is only that
necessary to convince the adjudicator that the conclusion drawn is rational, sound, and logical.14
Accordingly, Dr. Hartunian’s medical opinion is well-rationalized and logical and is therefore
sufficient to require further development of appellant s claim.15
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.16 OWCP has an obligation to see that justice is
done.17
On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
record to a specialist in the appropriate field of medicine. The chosen physician shall provide a
rationalized opinion as to whether the diagnosed hip condition is causally related to the accepted
factors of appellant’s federal employment. If the physician opines that the diagnosed condition is
not causally related, he or she must explain, with rationale, how or why the opinion differs from
that of Dr. Hartunian. Following this and such other further development as deemed necessary,
OWCP shall issue a de novo decision on appellant s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983).
15

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).
16

A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999).

17
B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the February 20, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: November 4, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Huntington, WV,
Employer
__________________________________________

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

Docket No. 13-881
Issued: July 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 4, 2013 appellant filed a timely appeal of a September 5, 2012 decision of the
Office of Workers’ Compensation Programs denying an oral hearing. Because over 180 days
elapsed between the most recent merit decision of July 11, 2011 to the filing of this appeal, the
Board lacks jurisdiction to review the merits of appellant’s case, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on appeal on two occasions. On
October 27, 2004 appellant, then a 57-year-old structural ironworker, filed a Form CA-2 alleging
that on June 1, 2011 he developed carpal tunnel syndrome due to squeezing the trigger on a
torch, welding leads or pounding on metal with chipping hammers, sledge hammers and
vibration from jack hammers. OWCP accepted his claim for bilateral carpal tunnel syndrome on
December 17, 2004. On January 19, 2006 it denied appellant’s claim for a schedule award. The
Branch of Hearings and Review affirmed this decision on July 18, 2006. By decision dated
January 8, 2007, OWCP granted appellant a schedule award for eight percent permanent
impairment of his upper extremities. Appellant requested reconsideration and by decision dated
May 16, 2007, it denied modification of the January 8, 2007 decision. He appealed these
decisions to the Board and in a decision dated December 10, 2007,2 the Board found the case not
in posture for decision and remanded for further development of the medical evidence and
determination of appellant’s pay rate. In a decision dated March 28, 2008, OWCP found that
appellant had a total of eight percent impairment of his upper extremities and adjusted his pay
rate. Appellant appealed this decision and on February 6, 2009,3 the Board affirmed the extent
of the permanent impairment and remanded the case for further development of his appropriate
pay rate. The facts and circumstance of the case as set forth in the Board’s prior decision are
adopted herein by reference.
By decision dated July 11, 2011, OWCP denied appellant’s claim for compensation for
the period January 10 to July 24, 2004 and his request to repurchase leave from October 4, 2003
through March 20, 2004 on the grounds that he had not submitted sufficient medical evidence of
disability.
Appellant requested an oral hearing before an OWCP hearing representative on a form
dated August 10, 2011. The postmark was dated August 12, 2011. By decision dated
September 5, 2012, OWCP denied appellant’s request for an oral hearing as untimely filed. It
noted that his request for an oral hearing was not made within 30 days from the July 11, 2011
decision as the postmark was dated August 12, 2011. OWCP found that the case could equally
well be considered by requesting reconsideration and submitting additional new evidence.
LEGAL PRECEDENT
Section 8124(b) of FECA,4 concerning a claimant’s entitlement to a hearing before an
OWCP representative, states: “Before review under section 8128(a) of this title, a claimant ...
not satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after

2

Docket No. 07-1867 (issued December 10, 2007).

3

Docket No. 08-1645 (issued February 6, 2009).

4

5 U.S.C. §§ 8101-8193.

2

the date of issuance of the decision, to a hearing on his claim before a representative of the
Secretary.”5
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.6 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 or other carriers date marking and before the claimant has requested
reconsideration.7 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny a hearing when the request is untimely or made after reconsideration under section 8128(a).
ANALYSIS
In the instant case, OWCP properly determined that appellant’s August 12, 2011 request
for a hearing was not timely filed as it was made more than 30 days after the issuance of
OWCP’s July 11, 2011 decision. It therefore, properly denied his hearing as a matter of right.
OWCP then proceeded to exercise its discretion to determine whether to grant a hearing
in this case. It determined that a hearing was not necessary as the issue in the case could be
resolved through the submission of additional evidence in the reconsideration process.
Therefore, OWCP properly denied appellant’s request for a hearing as untimely and properly
exercised its discretion in determining to deny his request for a hearing as he had other appeal
options available.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for an oral
hearing was untimely and that he was not entitled to an oral hearing.

5

Id. at § 8124(b)(1).

6

20 C.F.R. §§ 10.617, 10.618.

7

J.J., Docket No. 13-21 (issued May 8, 2013).

3

ORDER
IT IS HEREBY ORDERED THAT the September 5, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 3, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4