United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, San Diego, CA, Employer
__________________________________________

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

Docket No. 17-0152
Issued: May 2, 2017

Case Submitted on the Record

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

JURISDICTION
On October 31, 2016 appellant filed a timely appeal from an August 22, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an occupational
disease causally related to the accepted factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence following the August 22, 2016 decision. However,
since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57
ECAB 126 (2005).

FACTUAL HISTORY
On July 6, 2016 appellant, then a 26-year-old transportation security officer, filed an
occupational disease claim (Form CA-2) alleging that she sustained bilateral plantar fasciitis as a
result of standing for long periods of time. She stopped work on July 6, 2016. The record does
not indicate whether appellant returned to work.
By letter dated July 19, 2016, OWCP advised appellant that no evidence had been
submitted to establish her occupational disease claim. It requested that she submit additional
medical evidence to establish a diagnosed medical condition causally related to factors of her
employment. Appellant was afforded 30 days to submit the requested information. No
additional evidence was received by OWCP.
OWCP denied appellant’s claim in a decision dated August 22, 2016. It accepted that she
engaged in employment duties as a security officer, but denied her claim because the medical
evidence of record failed to establish a diagnosed condition causally related to the accepted
employment factors. OWCP noted that appellant had failed to submit any medical evidence to
support her claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4 In an occupational disease claim, appellant’s burden requires
submission of 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 opinion evidence.6 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

3

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

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

2

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
Appellant alleged that she developed bilateral plantar fasciitis as a result of her
employment as a transportation security officer. OWCP accepted that she engaged in
employment duties as a security officer, but denied her claim because the medical evidence of
record failed to establish a diagnosed condition causally related to the accepted factors of
employment. The Board finds that appellant failed to meet her burden of proof to establish an
occupational disease causally related to her accepted employment duties.
The evidence of record reveals that appellant submitted no medical evidence to establish
her claim. The Board has found that a claimant generally cannot meet the burden of proof where
there has been no medical evidence preferred.8
The Board finds, therefore, that OWCP properly denied appellant’s occupational disease
claim because she failed to submit medical evidence to establish a causal relationship between a
diagnosed medical condition and her accepted employment duties. The mere fact that work
activities may produce symptoms revelatory of an underlying condition does not raise an
inference of an employment relation. Such a relationship must be shown by rationalized medical
evidence of a causal relation based upon a specific and accurate history of employment
conditions which are alleged to have caused or exacerbated a disabling condition.9 Because the
evidence of record does not contain such rationalized medical evidence, the Board finds that
appellant has not met her burden of proof to establish her claim.
On appeal, appellant contends that she was present when her attending physician sent her
medical records to the Department of Labor and that she had retained copies of the documents
that were sent. The Board has reviewed the evidence of record, however, and notes that OWCP
did not receive any medical evidence before it issued its decision on August 22, 2016.
Accordingly, appellant failed to meet 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. §§ 10.606 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an
occupational disease causally related to the accepted factors of her federal employment.

7

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

8

See A.C., Docket No. 11-2023 (issued April 20, 2012); Donald W. Wenzel, 56 ECAB 390 (2005).

9

Patricia J. Bolleter, 40 ECAB 373 (1988).

3

ORDER
IT IS HEREBY ORDERED THAT the August 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 2, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.V., Appellant

and
U.S POSTAL SERVICE, LOGISTICS &
DISTRIBUTION CENTER, Kearny, NJ, Employer

__________________________________________

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

Docket No. 14-1210
Issued: September 16, 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 April 30, 2014 appellant, through counsel, filed a timely appeal of an April 8, 2014
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days has elapsed from the last merit decision, dated April 30, 2012, and the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3 the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board on appeal. On July 8, 2008 appellant,
then a 50-year-old mail handler and equipment operator, filed an occupational disease claim
alleging that he developed bilateral hearing loss due to noise exposures during his federal
1

5 U.S.C. § 8101 et seq.

employment. He submitted medical evidence in support of his claim from Dr. Laura L. Downey,
a Board-certified otolaryngologist.
OWCP referred appellant for a second opinion evaluation with Dr. Chong S. Kim, a
Board-certified otolaryngologist. In a report dated November 24, 2008, Dr. Kim reviewed the
statement of accepted facts and diagnosed hearing loss. He noted that appellant had a currently
nonfunctioning ear of the left and mild-to-moderate sensorineural hearing loss of the right.
Dr. Kim opined that appellant’s loss of hearing in his left ear was not employment related but
due to his diabetes mellitus.
By decision dated December 11, 2008, OWCP accepted appellant’s claim for
sensorineural hearing loss on the right. It did not accept his hearing loss in the left ear.
In a letter dated December 5, 2009, counsel requested reconsideration of the
December 11, 2008 decision and argued that appellant’s claim should include hearing loss in the
left ear. Appellant’s physician continued to support that appellant’s loss of hearing in his left ear
was due, in part, to noise exposure.
By decision dated August 17, 2010, OWCP reviewed appellant’s claim on the merits and
found that Dr. Kim’s report was entitled to the weight of the medical evidence and denied
modification of its prior decision finding no employment-related loss of hearing in the left ear.
Appellant filed a Board appeal on September 20, 2010. The Board issued its decision on
July 15, 2011,2 finding a conflict of medical opinion evidence between Drs. Downey and Kim
and remanded the case to OWCP to refer appellant, a statement of accepted facts, and a list of
specific questions to a Board-certified otolaryngologist to determine if his loss of hearing in the
left ear is related in any degree to his accepted employment-related noise exposure and if so,
whether there was any permanent impairment. The facts and the circumstances of the case up to
this point as set out in the Board’s prior decision are adopted herein by reference.
Following the Board’s decision, OWCP referred appellant for an impartial medical
examination with Dr. Anthony DeGennaro, a Board-certified otolaryngologist. In a report dated
October 25, 2011, Dr. DeGennaro reviewed appellant’s history of noise exposure and his
medical history. He diagnosed a mixed hearing loss in the left ear manifested by a 25-decibel
air-bone gap, primarily in the lower mid-frequency range with absent stapedial reflexes.
Dr. DeGennaro stated that the findings were consistent with bilateral hearing loss. He opined
that appellant’s left ear was affected to a greater degree due to a conductive overlay secondary to
otoscierosis. Dr. DeGennaro concluded that, “there are no findings on the audiometric testing
which would connote an indirect hearing loss, due to [appellant’s] occupation specifically.”
By decision dated November 17, 2011, OWCP denied appellant’s claim for loss of
hearing in the left ear. It found that Dr. DeGennaro established that appellant’s left ear hearing
loss was not work related.

2

Docket No. 10-2363 (issued July 15, 2011).

2

Counsel requested an oral hearing before an OWCP hearing representative on
November 22, 2011. Appellant testified at the oral hearing on February 14, 2012. He stated that
he required a hearing aid for his left ear and that his physician would review Dr. DeGennaro’s
report.
Dr. Bruce A. Edelman, a Board-certified otolaryngologist, completed a report on
February 27, 2012 and noted appellant’s history of asymmetric sensorineural hearing loss and
significant noise exposure at work. He noted appellant’s significant asymmetric discrimination
and the issues of whether appellant had conductive component in his left ear and otosclerosis.
Dr. Edelman noted appellant’s concurrent conditions of hypertension and diabetes. He found
that both ears showed some sclerosis of the eardrums consistent with chronic inflammation of the
eardrums over his lifetime. Dr. Edelman reviewed an audiogram which demonstrated an
asymmetric hearing loss and diagnosed this condition. He noted that there was a no significant
conductive component to appellant’s hearing loss. Dr. Edelman stated, “There is no question
that he might have a high frequency sensorineural hearing loss … secondary to noise exposure. I
do not have a good explanation for his left-sided hearing loss. Whether there is any
noise-induced hearing loss cannot be determined if he had a severe asymmetric loss which was
relatively sudden in nature.”
Appellant’s attending physician, Dr. Downey completed a report on March 4, 2012 and
found deficiencies in Dr. DeGennaro’s report. She noted that appellant had severe-to-profound
sensorineural loss on the left ear. Dr. Downey reported, “It is impossible to determine if there is
an air-bone gap as bone conduction is vibrotactile at that level.” She noted that appellant had
poor discrimination on the left ear. Dr. Downey opined that poor discrimination was not
consistent with otosclerosis and therefore unlikely to be the primary cause of the neural loss on
the left ear which was not congenital.
By decision dated April 30, 2012, the hearing representative found that Dr. DeGennaro’s
report was entitled to the weight of the medical opinion evidence and was sufficiently well
rationalized to establish that appellant’s left ear hearing loss was not causally related to his
employment.
In a letter dated May 14, 2013, counsel stated that he had requested reconsideration on
May 10, 2012. He included a copy of this request and submitted the reports from Dr. Edelman
dated February 27, 2012 and Dr. Downey dated March 4, 2012. The initial request for
reconsideration was dated May 10, 2012. On December 19, 2013 counsel asked when a decision
on his reconsideration requests would be issued. On March 26, 2014 he again asked when his
reconsideration requests would be addressed.
By decision dated April 8, 2014, OWCP denied appellant’s requests for reconsideration
as untimely filed and failing to establish clear evidence of error.

3

LEGAL PRECEDENT
Section 8128(a) of FECA3 does not entitle a claimant to a review of an OWCP decision
as a matter of right.4 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.5 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is timely.
In order to be timely, a request for reconsideration must be received by OWCP within one year
of the date of its merit decision for which review is sought.6 The Board has found that the
imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted OWCP under 5 U.S.C. § 8128(a).7
In those cases where requests for reconsideration are untimely filed, the Board has held
that OWCP must nevertheless undertake a limited review of the case to determine whether there
is clear evidence of error pursuant to the untimely request.8 OWCP’s procedures state that it will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth
in OWCP’s regulations, if the claimant’s request for reconsideration shows “clear evidence of
error” on the part of OWCP.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.10 The evidence must be positive, precise, and explicit and must
be manifest on its face that OWCP committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.14 To show clear
3

5 U.S.C. § 8128(a).

4

Thankamma Mathews, 44 ECAB 765, 768 (1993).

5

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

6

20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(October 2011).
7

Supra note 4 at 769; Jesus D. Sanchez, supra note 5 at 967.

8

Supra note 4 at 770.

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, supra note 6.

10

Supra note 4.

11

Leona N. Travis, 43 ECAB 227, 241 (1991).

12

Jesus D. Sanchez, supra note 5 at 968.

13

Supra note 11.

14

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

4

evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.15 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.
ANALYSIS
The Board finds that OWCP properly declined to reopen appellant’s claim for
consideration of the merits as the request was untimely filed and did not establish clear evidence
of error.
On prior appeal, the Board remanded this case for OWCP to develop whether appellant’s
loss of hearing in his left ear was due to his employment by referral to an impartial medical
examiner. OWCP undertook this development and found that the weight of the medical
evidence did not establish an employment-related loss of hearing in the left ear. Appellant
requested an oral hearing and the hearing representative agreed with this conclusion in a merit
decision dated April 30, 2012. Accordingly, he had one year from April 30, 2012 to make a
timely request for reconsideration. A right to reconsideration within one year accompanies any
merit decision on the issues.16
Appellant, through counsel, requested reconsideration by letter dated and received by
OWCP on May 14, 2013. The Board finds that the copy of a May 10, 2012 document labeled
“reconsideration” is not evidence that the document was received by OWCP. The record, at
most, establishes that the document was prepared on that date. Thus, it is insufficient evidence
to establish that a reconsideration request in this case was timely filed. As the request for
reconsideration, dated May 14, 2013, was received more than one year after the April 30, 2012
decision, the Board finds that OWCP properly found that this request for reconsideration was
untimely on its face. Consequentially, appellant must demonstrate clear evidence of error by
OWCP in denying his claim for compensation.17

15

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (October 2011).

17

20 C.F.R. § 10.607(b).

5

In support of the reconsideration request, counsel resubmitted the March 4, 2012 report
from Dr. Downey and the February 27, 2012 report from Dr. Edelman. Both of these reports
were already of record and had been reviewed by OWCP.18
In resubmitting this evidence, appellant failed to explain how it manifested on its face
that OWCP committed an error in denying his claim for compensation. Resubmission of this
evidence is insufficient to raise a substantial question as to the correctness of OWCP’s decision
and thus is insufficient to show clear evidence of error.
The Board finds that appellant has not submitted any evidence of sufficient probative
value to shift the weight of the evidence in his favor and raise a substantial question as to the
correctness of OWCP’s decision. Consequently, OWCP properly denied his reconsideration
request as it did not establish clear evidence of error.19
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to establish clear evidence of error.

18

Z.T., Docket No. 15-0250 (issued July 16, 2015) (where the Board found that in a clear evidence of error case
an appellant must explain how a repetitious medical report manifested on its face that OWCP committed an error in
denying the claim for compensation because mere resubmission of the medical evidence only is not sufficient to
raise a substantial question as to the correctness of OWCP’s decision and thus is insufficient to show clear evidence
of error). See also A.C., Docket No. 14-1883 (issued January 26, 2015) (appellant did not explain how the
resubmission of a medical report showed clear evidence of error).
19

See A.C., id.

6

ORDER
IT IS HEREBY ORDERED THAT the April 8, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. GOVERMENT, Employer
_________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0391
Issued: February 24, 2022

Case Submitted on the Record

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

On January 26, 2021 the Clerk of the Appellate Boards inadvertently assigned Docket No.
21-0391 to a purported appeal from a decision of the Office of Workers’ Compensation Programs
(OWCP).
The Board has duly considered the matter and recognizes that this appeal was docketed
under an incorrect OWCP file number. Section 501.3(a) of the Board ’s Rules of Procedure
provides that a “person adversely affected by a final decision of the Director [of OWCP] or his or
her authorized Representative, may file an appeal of such decision to the Board .”1 The Board
concludes that neither a “person adversely affected” by a final OWCP decision, nor an “authorized
Representative,” has filed an appeal to the Board. As such, there is no valid appeal before the
Board and Docket No. 21-0391 must be dismissed. Accordingly,

1

20 C.F.R. § 501.3(a).

IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0391 is dismissed.
Issued: February 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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


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

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

Docket No. 14-1507
Issued: August 17, 2015

Case Submitted on the Record

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

JURISDICTION
On June 23, 2014 appellant, through counsel, filed a timely appeal of a June 2, 2014
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days has elapsed between the last merit decision on February 1, 2013 and the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s application for reconsideration
without reviewing the merits of the claim for compensation pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated July 3, 2013, the
Board affirmed a February 1, 2013 OWCP decision denying the claim for compensation.2
Appellant had filed a claim on January 5, 2012 alleging that she sustained a spinal nerve injury
causally related to repetitive movements as a mail carrier. The Board found that the medical
evidence from the attending orthopedic surgeon, Dr. Darryl Miller, was insufficient to establish
the claim. As the Board noted, Dr. Miller did not discuss appellant’s job duties or provide a
complete factual background. In addition, Dr. Miller had indicated only that appellant had been
asymptomatic and this was not sufficient medical rationale to support an opinion on causal
relationship with employment.
Appellant, through counsel, filed a request for reconsideration dated December 5, 2013
and a September 27, 2013 report from Dr. Miller. In his report Dr. Miller noted that he had seen
appellant in November 2012, with magnetic resonance imaging (MRI) scans showing disc
protrusion and bilateral foraminal stenosis at C5-6, and disc bulges at C3-7. He stated that
appellant continued to have cervical symptomology. Dr. Miller further stated that appellant
“previously was employed as a rural mail carrier which involved approximately 1,000 deliveries
a day on her route. Additionally, she worked anywhere from five to six days per week. This
involved entering and exiting the vehicle as well as rotation of body, torso, neck and upper
extremities for the delivery of mail. I explained to [appellant] that due to the fact that she was
asymptomatic before this event and with the type of work she does, this is certainly some type of
injury that can be attributable to her work[-]related activities.”
By decision dated June 2, 2014, OWCP denied merit review of the claim. It found the
September 27, 2013 report from Dr. Miller was “substantially similar” to previous evidence of
record.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”4
20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.5
2

Docket No. 13-900 (issued July 3, 2013).

3

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

2

ANALYSIS
In the present case, appellant submitted on reconsideration a new medical report dated
September 27, 2013 from Dr. Miller. The issue is whether the new evidence is “relevant and
pertinent” to the medical issue under 20 C.F.R. § 10.606(b)(3). Although OWCP finds that the
report was “substantially similar” to his prior reports, the Board finds the September 27, 2013
report is new and relevant evidence.6
As the Board discussed in the prior appeal, Dr. Miller’s previous reports had not
discussed appellant’s actual job duties or work history. In the September 27, 2013 report,
Dr. Miller refers to appellant’s job duties of delivering mail, the amount of mail and the number
of days performed. In addition, Dr. Miller for the first time refers to the mechanism of injury
and the specific repetitive activity that occurred. In S.G., the claimant submitted on
reconsideration a new medical report discussing, for the first time, the employment activity and
the mechanism of injury involved.7 The Board found this was sufficient to require OWCP to
reopen the case for merit review. As the Board noted, appellant is not required to cure all
deficiencies in the claim to meet the requirements of 20 C.F.R. § 10.606(b)(3).
In this case the September 27, 2013 report is new, relevant, and pertinent evidence with
respect to the medical issue in the case. Pursuant to 20 C.F.R. § 10.606(b)(3), appellant is
entitled to a merit review of her claim. The case will be remanded to OWCP for a decision on
the merits of the claim for compensation.
CONCLUSION
The Board finds appellant’s application for reconsideration was sufficient to warrant
merit review of her claim for compensation.

6

The Board has reviewed the September 27, 2013 report by Dr. Miller which was submitted in support of the
reconsideration request dated December 5, 2013. That request for merit review was denied by the decision presently
before the Board. The September 2013 medical report differs from prior reports such as the medical reports dated
June 8 and December 18, 2012.
7

Docket No. 12-1107 (issued January 22, 2013).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 2, 2014 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: August 17, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Garland, TX, Employer
__________________________________________

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

Docket No. 13-105
Issued: July 29, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On October 18, 2012 appellant filed an appeal from an August 9, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was entitled
to disability compensation for the period March 12 to April 28, 2011.
On appeal, appellant asserts that the medical evidence established that she was disabled.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In a May 3, 2012 decision, the Board
found that the case was not in posture for decision regarding appellant’s entitlement to disability
compensation for the period March 12 to April 28, 2011. The Board remanded the case to
OWCP to refer appellant, an updated statement of accepted facts and the medical record to an
appropriate Board-certified specialist for an examination, diagnosis and a rationalized opinion as
to whether appellant was disabled from work for the period March 12 to April 28, 2011 due to
the accepted conditions.2 After this and such further development deemed necessary, OWCP
was to issue an appropriate decision.3 The law and the facts of the previous Board decision are
incorporated herein by reference.
Relevant medical evidence discussed in the Board’s May 3, 2010 decision includes a
January 26, 2011 left knee magnetic resonance imaging (MRI) scan that demonstrated mild
patellar tendinosis, very small joint effusion, moderate patellar subluxation, a possible partial or
remote injury to the anterior cruciate ligament and mild prolapse of the body of the medial
meniscus without visible meniscal tear. In a February 8, 2011 duty status report, Dr. Tom G.
Mayer, an attending Board-certified orthopedic surgeon, advised that appellant was totally
disabled. On March 17, 2011 he advised that she had a progressive increase in disability over an
extended period with a gait disturbance, inability to squat walk with an antalgic gait on the left,
patellofemoral joint pain and tenderness with a positive patellar compression test, posterolateral
corner pain producing lateral hamstring findings, mild instability of the medial collateral
ligament, positive meniscal compression tests suggesting a possible medial meniscus tear and the
MRI scan findings of patellar tendinopathy with joint effusion and patellar subluxation and
changes consistent with a previous partial anterior cruciate ligament tear and mild prolapse of the
medial meniscus. Dr. Mayer explained on May 6, 2011 that appellant was disabled due to her
“weak link” knee problem and on May 24, 2011 reported that she had recently been in a motor
vehicle accident.
While the claim was before the Board, Dr. Mayer continued to submit reports describing
appellant’s current condition and restrictions. On August 5, 2011 he reported that she could
return to modified duty for four hours daily. Appellant returned to part-time modified duty on
August 13, 2011 and received partial wage-loss compensation.
In September 2011 OWCP referred appellant to Dr. Marvin E. Van Hal, a Board-certified
orthopedic surgeon, for an opinion regarding appellant’s condition and work restrictions. A
functional capacity evaluation (FCE) was performed on October 12, 2011 which indicated that
she had physical restrictions. In an October 18, 2011 report, Dr. Van Hal noted his review of the
2

On August 7, 2008 appellant, a city letter carrier, injured her right elbow and left knee when she tripped and fell
while delivering mail. OWCP initially accepted that she sustained a sprain of the right arm and elbow and, in
December 2010, also accepted left patellofemoral dysfunction. Appellant was working limited duty at the time she
claimed compensation beginning March 12, 2011. A job description indicates that appellant was to case mail for
delivery for one to two hours, deliver mail for one to six hours, stand for one to four hours, drive to deliver mail for
one to six hours, walk to prepare and deliver mail for one to six hours and lift to prepare and deliver mail for one to
eight hours daily.
3

Docket No. 11-2095 (issued May 3, 2012).

2

statement of accepted facts and medical record and appellant’s complaint of left knee pain. He
reviewed the FCE and advised that she had residual symptoms of her right elbow and left knee
employment injuries and could work restricted duty for eight hours a day. In an October 19,
2011 report, Dr. Gregory Powell, a Board-certified physiatrist, diagnosed post-traumatic
osteoarthritis of the left knee. He advised that appellant could continue to work.
By decision dated October 24, 2011, OWCP denied appellant’s claim for compensation
for the period April 23 to May 13, 2011 and May 30 to August 26, 2011.
On November 28, 2011 Dr. Larry T. Johnson, Board-certified in surgery and orthopedic
surgery, noted appellant’s left knee history. He diagnosed continuing knee dysfunction. A
December 9, 2011 MRI scan study of the left knee demonstrated severe lateral patellar
subluxation, small effusion, peripheral extrusion of the anterior horn and anterior body of the
medial meniscus with blunting of the free edge and evidence of lateral tibial and medial
chondromalacia. Dr. Mayer continued to submit reports describing appellant’s condition. On
February 17, 2012 he advised that she could return to full duty.
OWCP determined that a conflict in medical evidence had been created regarding
appellant’s work capabilities and referred her to Dr. Bernie McCaskill, a Board-certified
orthopedic surgeon, for an impartial evaluation. In a February 21, 2012 report, Dr. McCaskill
noted appellant’s report of the history of illness and his review of the medical record. He
advised that, while she had no significant abnormal findings on physical examination other than
left patellofemoral crepitus, her complaints were relatively focal and consistent with his
diagnoses of chronic lateral epicondylitis of the right elbow and chronic left patellofemoral knee
pain. Dr. McCaskill saw no objective reason why appellant could not return to her full,
unrestricted duties.
On March 19, 2012 Dr. Johnson examined appellant and discussed the possibility of left
knee surgery. In an April 19, 2012 report, Dr. Peter Louis, a Board-certified internist, advised
that there was no contraindication for the recommended surgery. OWCP authorized arthroscopic
surgery to repair a degenerated left kneecap with reconstruction of the knee. On May 8, 2012
Dr. Johnson performed arthroscopic surgery for left patellofemoral dysfunction. Appellant was
placed on the compensation rolls for total disability.
As discussed above, on May 3, 2012, the Board remanded the case to OWCP for referral
to an appropriate Board-certified specialist for an examination, diagnosis and a rationalized
opinion as to whether appellant was disabled from work for the period March 12 to April 28,
2011 due to the accepted conditions. OWCP was to then issue an appropriate decision.4
In form reports dated April 23 and May 31, 2012, Dr. Johnson advised that appellant was
totally disabled.
In June 2012 OWCP referred appellant, a statement of accepted facts, the medical record
and a set of questions to Dr. Zvi Kalisky, Board-certified in physical medicine and

4

Id.

3

rehabilitation,5 who was to provide an opinion as to whether appellant was disabled from work
for the period March 12 to April 28, 2011 due to the accepted conditions resulting from the
July 28, 2008 employment injury. By report dated July 24, 2012, Dr. Kalisky noted the history
of injury, his review of the statement of accepted facts and medical record and appellant’s
complaints of weakness in the left lower extremity secondary to immobility and constant pain in
the left knee and right elbow pain. He provided physical examination findings of the right elbow
and left knee. Dr. Kalisky diagnosed status-post right elbow/forearm sprain/strain and
patellofemoral dysfunction of the left knee secondary to the employment injury status-post left
knee arthroscopy. In answer to specific OWCP questions, he advised that a careful review of the
medical records did not support that appellant was disabled from work in the period March 12 to
April 28, 2011, stating:
“During that timeframe the patient was under the care of Dr. Mayer. At that time
[appellant] was 32 months post injury. She was complaining of chronic pain in
the right elbow and left knee. According to the statement of accepted facts
[appellant] stopped working on August 6, 2008 and returned on September 4,
2008 and worked until January 20, 2011. Left knee MRI [scan] on January 26,
2011 revealed mild patellar tendinosis and moderate patellar subluxation without
osteochondrosis.
On an FCE done on February 24, 2011, the patient
demonstrated functional capacity within sedentary/light Physical Demand Level.
On March 16, 2011 Dr. Powell performed Synvisc injection to the left knee.
According to [his] report on April 13, 2011 the injection resulted in 70 percent
improvement. Dr. Powell noted that [appellant] demonstrated full range of
motion and no ligament instability or effusion. [Appellant] was noted to have
severe crepitus. Dr. Powell indicated that there would be no need for further
injections for at least six months. Given the above facts, the case for total
disability in the period from March 12, 2011 to April 28, 2011 is not established.
Based on the above facts there were no objective findings that would have
precluded the patient from working modified duty with restrictions.”
In a July 26, 2012 report, Dr. Mayer reported that appellant was seen following May 8,
2012 knee surgery. He advised that she had severe limitation of mobility and weight-bearing
capability.
In a merit decision dated August 9, 2012, OWCP found that the weight of the medical
evidence rested with the opinion of Dr. Kalisky and denied appellant’s claim for disability
compensation for the period March 12 to April 28, 2011.
LEGAL PRECEDENT
Under FECA, the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.6 Disability is
thus not synonymous with physical impairment which may or may not result in an incapacity to
5

In July 2012 OWCP referred appellant to a medical management nurse.

6

See Prince E. Wallace, 52 ECAB 357 (2001).

4

earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA7 and whether a particular
injury causes an employee disability for employment is a medical issue which must be resolved
by competent medical evidence.8 Whether a particular injury causes an employee to be disabled
for work and the duration of that disability, are medical issues that must be proved by a
preponderance of the reliable, probative and substantial medical evidence.9
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.10 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.11 Causal relationship is a medical
issue. 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.12 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.13
FECA provides that, if there is a 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 the examination.14 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, it 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.15

7

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

8

Donald E. Ewals, 51 ECAB 428 (2000).

9

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

10

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

11

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

12

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

13

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

14

5 U.S.C. § 8123.

15

20 C.F.R. § 10.321.

5

ANALYSIS
The Board finds that this case is not in posture for decision as a conflict in medical
evidence has been created regarding whether appellant met her burden of proof to establish that
she was entitled to disability compensation for the period March 12 to April 28, 2011.
In its May 3, 2012 decision, the Board noted that the medical evidence relevant to the
period of claimed compensation included a January 26, 2011 left knee MRI scan study that
demonstrated mild patellar tendinosis, very small joint effusion, moderate patellar subluxation, a
possible partial or remote injury to the anterior cruciate ligament and mild prolapse of the body
of the medial meniscus without visible meniscal tear. In a February 8, 2011 duty status report,
Dr. Mayer, an attending orthopedic surgeon, advised that appellant was totally disabled. On
March 17, 2011 he advised that she had a progressive increase in disability over an extended
period of time with a gait disturbance, inability to squat walk with an antalgic gait on the left,
patellofemoral joint pain and tenderness with a positive patellar compression test, posterolateral
corner pain producing lateral hamstring findings, mild instability of the medial collateral
ligament, positive meniscal compression tests suggesting a possible medial meniscus tear and the
MRI scan findings of patellar tendinopathy with joint effusion and patellar subluxation and
changes consistent with a previous partial anterior cruciate ligament tear and mild prolapse of the
medial meniscus. Dr. Mayer explained on May 6, 2011 that appellant was disabled due to her
“weak link” knee problem. While he reported on May 24, 2011 that she had recently been in a
motor vehicle accident, this was after the period of claimed disability in this case. The Board
remanded the case for further development.
In his July 24, 2012 report, Dr. Kalisky, OWCP’s referral physician, advised that he had
reviewed the statement of accepted facts and medical record, including Dr. Mayer’s reports. He
stated that during the period of claimed disability, appellant complained of chronic pain in the
right elbow and left knee. Dr. Kalisky described the January 26, 2011 left knee MRI scan study
and February 24, 2011 FCE findings, noting that the latter indicated that she had the functional
capacity to perform at the sedentary to light physical demand level. He also noted Dr. Powell’s
report on April 13, 2011 that appellant had a 70 percent improvement following a Synvisc
injection to the left knee and had full range of motion and no ligament instability or effusion, but
that she also had severe crepitus. Dr. Kalisky concluded that, based on the above facts, there
were no objective findings that would have precluded the patient from working modified duty
with restrictions.”
The Board additionally notes that the statement of accepted facts provided Dr. Kalisky
does not include a description of the modified duties that appellant was performing when she
stopped work in January 2011.16 The statement of accepted facts instead merely describes the
full duties of a city carrier. Without a full description of the duties that appellant was performing
when she stopped work, a mere finding that she could perform sedentary to light work is not
sufficient to show that she could perform the modified position.

16

Supra note 2.

6

In view of this disagreement between Dr. Kalisky, OWCP’s referral physician, and the
employee’s attending physicians, the Board finds that a conflict in medical evidence has been
created. The Board will therefore set aside the August 9, 2012 OWCP decision and remand the
case to OWCP for an impartial evaluation regarding whether appellant is entitled to disability
compensation for the period March 12 to April 28, 2011. After such further development as
deemed necessary, OWCP should issue an appropriate decision.17
CONCLUSION
The Board finds this case is not in posture for decision due to a conflict in medical
evidence regarding whether appellant is entitled to disability compensation for the period
March 12 to April 28, 2011 due to the accepted conditions.
ORDER
IT IS HEREBY ORDERED THAT the August 9, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: July 29, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

17

L.B. (G.B.), Docket No. 10-1374 (issued September 19, 2011).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, West Haven, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1864
Issued: January 7, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 22, 2014 appellant filed a timely appeal from a February 25, 2014 nonmerit
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 lacks
jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s December 2, 2013 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 15, 2006 appellant, then a 40-year-old nurse, filed a traumatic injury claim
alleging that on March 14, 2006 she experienced bilateral knee pain as a result of slipping on wet
1

5 U.S.C. § 8101 et seq.

alcohol wipes on the floor and falling down. She stopped work on March 16, 2006. OWCP
accepted appellant’s claim for acute back strain, hip sprain, and bilateral knee contusions and
paid wage-loss compensation benefits. On April 30, 2006 appellant was authorized to return to
full-time light duty. She continued to undergo medical treatment for lower back and left leg pain
with intermittent periods of disability.
On August 28, 2013 appellant requested disability compensation for the period August 10
to 16, 2013. She submitted hospital preoperative evaluation records dated May 8, 2011 and
February 21, 2013 and an operative note for a lumbar steroid injection.
In an August 30, 2013 work restriction note, Dr. John Marino, Board-certified in physical
medicine and rehabilitation, stated that appellant had put in papers for reasonable
accommodation because her request to use a shuttle ride was denied. He recommended that she
not work until September 16, 2013.
In a letter dated September 19, 2013, OWCP advised appellant that the evidence
submitted indicated that she may have sustained a recurrence of disability. It requested that she
submit a Form CA-2a if she believed her disability beginning August 10, 2013 was causally
related to her March 14, 2006 employment injury and to submit medical evidence to establish
that her inability to work was causally related to her accepted conditions.
Appellant submitted hospital records dated February 21, 2013 which indicated that she
received a lumbar steroid injection for left lumbar radiculopathy.
In a decision dated October 25, 2013, OWCP denied appellant’s claim finding
insufficient evidence to establish a recurrence of disability due to a change or worsening of her
accepted March 14, 2006 conditions.
In an appeal request form dated November 20, 2013 and received by OWCP on
December 2, 2013, appellant requested reconsideration. She resubmitted medical reports dated
January 7 and 20, 2009 from Dr. Isaac Cohen, Board-certified in physical medicine and
rehabilitation, regarding treatment for left leg weakness and chronic low back pain and the
February 21, 2013 hospital records. Appellant also submitted a January 30, 2014 anesthesia
record.
In various reports by Dr. Marino dated October 14 and December 31, 2013, he related his
treatment for appellant’s ongoing lower back and left leg pain. Upon examination, he observed
good strength in her legs and increased pain in her lower back and lumbar flexion. Dr. Marino
also noted some pain with passive rotation of the left hip. He reported that an x-ray dated
December 31, 2013 demonstrated well-preserved joint space with no joint margin osteophytes or
fractures. Dr. Marino recommended that appellant continue with lumbar injections.
By decision dated February 25, 2014, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant further merit
review under 5 U.S.C. § 8128(a). It determined that the medical evidence submitted was not
relevant to the issue or repetitive of evidence previously submitted.

2

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.2 OWCP regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his or her right through a request to the district Office.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.4
A request for reconsideration must also be submitted within one year of the date of
OWCP’s decision for which review is sought.5 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.6 If the request is timely but fails to
meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.7
ANALYSIS
OWCP accepted that on March 15, 2006 appellant sustained back strain, hip sprain, and
bilateral knee contusions in the performance of duty. Appellant stopped work and returned to
full-time limited duty in April 2006. On August 28, 2013 she requested disability compensation
for the period August 10 to 16, 2013. Appellant submitted medical records including hospital
records dated May 8, 2011 and February 21, 2013 and various reports by Dr. Marino. By
decision dated October 25, 2013, OWCP denied appellant’s claim finding insufficient evidence
to establish that she sustained a recurrence of disability due to a change or worsening of her
accepted March 14, 2006 conditions.
Appellant requested reconsideration by appeal request form received by OWCP on
December 2, 2013. In a decision dated February 25, 2014, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant further merit
2

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

3

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
4

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued
December 9, 2008).
5

Id. at § 10.607(a).

6

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

7

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

3

review under 5 U.S.C. § 8128(a). The only issue for determination before the Board is whether
OWCP properly denied appellant’s request for reconsideration.
Along with her request for reconsideration, appellant resubmitted medical reports dated
January 7 and 20, 2009 from Dr. Cohen regarding treatment for left leg weakness and chronic
low back pain and the February 21, 2013 hospital records. The submission of evidence which
repeats or duplicates evidence already in the case record does not constitute a basis for reopening
a case.8 These reports, therefore, are insufficient to warrant merit review of appellant’s claim.
Appellant also submitted various medical documents including a January 30, 2014
anesthesia record and reports by Dr. Marino dated October 14 and December 31, 2013.
Dr. Marino treated appellant for ongoing lower back and left leg pain. Upon examination, he
observed good strength in her legs and increased pain in her lower back and lumbar flexion.
Dr. Marino also noted some pain with passive rotation of the left hip. He recommended that
appellant continue with lumbar injections. Although these medical documents constitute new
evidence, they do not provide any new or pertinent information regarding whether appellant was
unable to work beginning August 10, 2013 as a result of her accepted conditions. The Board
notes that the submission of evidence that does not address the particular issue involved does not
constitute a basis for reopening a case.9 Accordingly, this evidence does not constitute a basis
for further merit review of appellant’s claim.
On appeal appellant alleges that her original back and left leg conditions did not
completely heal due to the constant aggravations of her job. She states that she made a mistake
in not sending in documents with her reconsideration request and noted that she was now
submitting those additional documents. The Board’s jurisdiction, however, is limited to
evidence that was before OWCP at the time it issued its final merit decision. Accordingly, it
may not consider this evidence for the first time on appeal.10 Appellant may submit that
evidence to OWCP along with a request for reconsideration.
Appellant did not meet any requirements of 20 C.F.R. § 10.606(b)(2). She did not submit
any evidence along with her request for reconsideration to show that OWCP erroneously applied
or interpreted a specific point of law, or advances a relevant legal argument not previously
considered by OWCP. Pursuant to 20 C.F.R. § 10.608(b), OWCP properly declined to reopen
the case for review of the merits.
The Board finds that appellant failed to submit relevant and pertinent new evidence, a
relevant legal argument not previously considered by OWCP, or evidence or argument which
shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP
properly refused to reopen her case for further consideration of the merits of her claim under
5 U.S.C. § 8128.

8

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

9

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

10

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

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s December 2, 2013 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, PROCESSING &
)
DISTRIBUTION CENTER, Capitol Heights, MD, )
Employer
)
__________________________________________ )
A.L., Appellant

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

Docket No. 09-1592
Issued: March 4, 2010

Case Submitted on the Record

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

JURISDICTION
On June 8, 2009 appellant filed a timely appeal from a January 12, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for a
prerecoupment hearing. As there is no merit decision within 180 days of the last Office decision
dated November 24, 2008, the Board lacks jurisdiction to review the merits of this case under 20
C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for a prerecoupment
hearing.

1

The appeal was postmarked June 2, 2009. The Office issued the last merit decision on November 24, 2008.

FACTUAL HISTORY
On March 2, 1999 appellant, then a 28-year-old part-time flexible mail handler, filed a
claim alleging that she sustained a muscle sprain of the left arm and shoulder on that date in the
performance of duty. The Office accepted the claim for a left shoulder sprain. After sustaining
intermittent periods of disability, she stopped work on February 20, 2003 and did not return. The
Office paid appellant compensation for total disability.
On February 12, 2008 the Office notified appellant of its preliminary determination that
she received an overpayment of $6,489.53 for the period January 22, 2006 through
November 25, 2007 because it failed to deduct health care premiums. It further advised her of its
preliminary determination that she was without fault in the creation of the overpayment. On
February 15, 2008 appellant submitted a completed overpayment recovery form and requested a
prerecoupment hearing. Following a preliminary review, a hearing representative found that the
case was not in posture for a hearing. She found that the overpayment occurred but that the
Office did not correctly calculate the overpayment as it also failed to deduct basic and optional
life insurance.
On October 10, 2008 the Office advised appellant of its preliminary determination that he
received an overpayment of $6,868.44 because it failed to withhold premiums for health care and
basic life insurance from her compensation for the period January 22, 2006 to
September 27, 2008. It further advised her of its preliminary determination that she was without
fault in creating the overpayment. The Office requested that appellant complete the enclosed
overpayment recovery questionnaire and submit supporting financial documents. Additionally, it
notified her that, within 30 days of the date of the letter, she could request a telephone
conference, a final decision based on the written evidence or a prerecoupment hearing.
On November 24, 2008 the Office finalized its finding that appellant received a
$6,868.44 overpayment of compensation for the period January 22, 2006 through November 24,
2007 because it failed to deduct health care premiums and basic life insurance from her
compensation. It further finalized its finding that she was without fault in creating the
overpayment. The Office noted that appellant had not responded to its preliminary determination
of overpayment and denied waiver as she had not submitted financial information supporting the
need for waiver. It determined that it would recover the overpayment by withholding $290.00
from her continuing compensation.
In an overpayment action request form signed November 26, 2008, appellant requested a
prerecoupment hearing by teleconference. In a decision dated January 12, 2009, the Office
denied her request for a hearing after finding that she did not timely request a hearing on the
preliminary notice of overpayment and as a final overpayment decision was not subject to a
hearing under 5 U.S.C. § 8124.
LEGAL PRECEDENT
The Office regulations on the recovery of overpayments provide that before collecting the
overpayment, it must provide the claimant with written notice of the fact and amount of the
overpayment, the finding of fault, the right to submit evidence challenging the fact, amount or

2

finding of fault and the right to request waiver of the overpayment.2 The Office’s regulations
further provide that a claimant may request a prerecoupment hearing with respect to an
overpayment.3 Failure to request the prerecoupment hearing within 30 days shall constitute a
waiver of the right to a hearing.4 The only right to a review of a final overpayment decision is to
the Board.5 The hearing provisions of 5 U.S.C. § 8124(b) do not apply to a final overpayment
decision.6
ANALYSIS
The Office’s October 10, 2008 preliminary determination of overpayment provided
appellant with a right to request a prerecoupment hearing within 30 days. As noted above, if a
claimant does not request a hearing within 30 days, it is considered a waiver of the right to a
hearing. When the final overpayment decision is issued, there is no right to a hearing or a review
of the written record, and the Office does not have discretion to grant such a request. The only
right to appeal is to the Board.7 In this case, appellant requested a prerecoupment hearing on
November 26, 2008, more than 30 days after the preliminary overpayment finding and 2 days
after the November 24, 2008 overpayment decision. Once the Office issued the final
overpayment decision on November 24, 2008, her only right of appeal was to the Board. The
Board finds that the Office properly denied appellant’s November 26, 2008 request for a hearing
as she was not entitled to a hearing with respect to a final overpayment decision.8
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a prerecoupment
hearing.

2

20 C.F.R. § 10.431.

3

Id. at § 10.432.

4

Id.

5

Id. at § 10.440(b).

6

Id.; see also Philip G. Feland, 48 ECAB 485 (1997).

7

Id. at § 10.440(b)

8

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 12, 2009 is affirmed.
Issued: March 4, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, FLOYD
BENNETT FIELD, Brooklyn, NY, Employer
__________________________________________

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

Docket No. 20-0797
Issued: August 5, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 27, 2020 appellant filed a timely appeal from a January 28, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish exposure to a
chemical odor in the performance of duty on August 29, 2019, as alleged.
FACTUAL HISTORY
On September 16, 2019 appellant, then a 79-year-old park ranger, filed a traumatic injury
claim (Form CA-1) alleging that on August 29, 2019 at approximately 11:00 a.m. her preexisting
1

5 U.S.C. § 8101 et seq.

upper respiratory condition was triggered as a result of exposure to a chemical smell in her office
while in the performance of duty.2 She explained that this exposure caused excessive coughing
and wheezing. On the reverse side of the claim form her supervisor acknowledged that appellant
was in the performance of duty when the injury occurred. Appellant stopped work on
August 30, 2019.
Appellant submitted September 4, 2019 hospital discharge instructions, which noted that
she was admitted to the hospital on August 31, 2019 and seen by Dr. Rabih Maroun, a Boardcertified pulmonologist. It provided instructions for treatment of chronic obstructive pulmonary
disease (COPD) exacerbation.
In a September 27, 2019 letter, Dr. Betty Parisis, a family medicine specialist, noted that
appellant was seen on September 11, 2019 following her September 4, 2019 discharge from the
hospital. She indicated that appellant was initially admitted to the hospital for recurrence of her
COPD, which was triggered by overexposure to a chemical smell at work on August 29, 2019.
Dr. Parisis noted that appellant had been receiving recurring emergency treatments for
exacerbation of her COPD since March 5, 2015. She indicated that she could return to work on
October 1, 2019 on a trial basis.
In an October 2, 2019 letter, the employing establishment indicated that appellant refused
its offer of an alternative work assignment and “walked out” without a sufficient cause.
In an October 15, 2019 development letter, OWCP advised appellant that, when her claim
was first received, it appeared to be a minor injury that resulted in minimal or no lost time from
work and; therefore, payment of a limited amount of medical expenses was administratively
approved without formal consideration of the merits of her claim. It had now reopened appellant’s
claim for consideration of the merits and informed appellant t of the deficiencies of her claim.
OWCP advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. It afforded appellant 30 days to respond. No further evidence
was received.
By decision dated November 15, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the August 29, 2019 employment incident
occurred as alleged. It concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
On November 25, 2019 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
In an August 28, 2019 e-mail, appellant notified the employing establishment that she had
to leave the office that day because of a paint smell, which caused excessive coughing. She
explained that she did not want this to lead to another upper respiratory problem. In an August 29,
2

Appellant has a previously accepted traumatic injury for temporary aggravation of upper respiratory tract
hypersensitivity reaction under OWCP File No. xxxxxx427. She also previously filed a traumatic injury claim on
February 20, 2019 for an asthma attack under OWCP File No. xxxxxx006. OWCP had administratively approved
payment of a limited amount of medical expenses without formally adjudicating the merits of that claim.

2

2019 e-mail, appellant notified the employing establishment that she was still coughing and
wheezing due to overexposure to the paint. She asserted that she could not return to work and
requested teleworking.
By decision dated January 28, 2020, OWCP’s hearing representative affirmed OWCP’s
November 15, 2019 decision. She additionally ordered that OWCP administratively combine the
present case with appellant’s previous claims under OWCP File Nos. xxxxxx427 and xxxxxx006
as they also involved upper respiratory conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.8 The employee has not met his or her burden of proof of establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
3

Supra note 1.

4
F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

See J.M., Docket No. 19-1024 (issued October 18, 2019); M.F., Docket No. 18-1162 (issued April 9, 2019).

3

medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements
in determining whether a case has been established. An employee’s statement alleging that an
injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence.9
ANALYSIS
The Board finds that appellant has met her burden of proof to establish that the August 29,
2019 employment exposure occurred in the performance of duty, as alleged.
Appellant filed a traumatic injury claim alleging that her preexisting upper respiratory
condition was triggered on the alleged date of injury as a result of exposure to a chemical smell in
her office while in the performance of duty. The record also establishes that appellant promptly
reported the onset of respiratory symptoms to the employing establishment in e-mails dated
August 28 and 29, 2019 in which she asserted that she was exposed to a chemical smell at work
which caused to cough excessively. Additionally, appellant sought prompt medical care, first with
Dr. Maroun on August 31, 2019, who diagnosed COPD exacerbation. She subsequently sought
care with Dr. Parisis on September 11, 2019. Dr. Parisis, in her September 27, 2019 letter,
confirmed that appellant had been admitted to the hospital for recurrence of her COPD
exacerbation, which was triggered by overexposure to a chemical smell at work on
August 29, 2019.
Appellant has provided a single account of the mechanism of injury, specifically that she
was exposed to a chemical smell at work, which has not been refuted by any evidence in the
record.10 As noted, an employee’s statement alleging that an injury occurred at a given time and
place, and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence.11 Further, the employing establishment acknowledged that appellant was
injured in the performance of duty and concurred with her account of her injury. The Board has
held that the employing establishment’s acknowledgment that the injury occurred in the
performance of duty is sufficient, if consistent with the surrounding facts and circumstances, to
establish that the exposure occurred, as alleged, and in the performance of duty.12 The Board, thus,
finds that given the above-referenced evidence, appellant has established with specificity that the
August 29, 2019 exposure occurred at the given time, place, and in the manner alleged.
As appellant has established that the August 29, 2019 employment exposure factually
occurred in the performance of duty, the question becomes whether this exposure caused an
injury.13 Causal relationship is a medical issue and the evidence required to establish causal

9

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

10

See S.W., Docket No. 19-0653 (issued November 21, 2019).

11

Supra note 9.

12

D.M., Docket No. 20-0314 (issued June 30, 2020).

13

S.W., supra note 10.

4

relationship is rationalized medical opinion evidence.14 The Board will, therefore, remand the case
for consideration of the medical evidence. Following this and other such further development as
deemed necessary, OWCP shall issue a de novo decision addressing whether appellant has met her
burden of proof to establish a condition causally related to the accepted August 28, 2019
employment exposure.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish that the August 29,
2019 employment exposure occurred in the performance of duty, as alleged. The Board further
finds that the case is not in posture for decision regarding whether she has established an injury
causally related to the accepted August 29, 2019 employment exposure.
ORDER
IT IS HEREBY ORDERED THAT the January 28 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: August 5, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

14

A.C., Docket No. 18-0096 (issued January 21, 2020).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.V., Appellant
and
DEPARTMENT OF THE AIR FORCE, OGDEN
UTAH OAMA, RANDOLPH AIR FORCE
BASE, TX, Employer
__________________________________________

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

Docket No. 15-1336
Issued: October 8, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 26, 2015 appellant filed a timely appeal from a January 29, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP) and a May 11, 2015 nonmerit
decision. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an injury in the performance of duty on February 17, 2011; and (2) whether OWCP
properly denied his request for further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 28, 2011 appellant, then a 50-year-old industrial engineering technician,
filed a traumatic injury claim (Form CA-1) alleging that on Thursday, February 17, 2011 he
sustained a neck sprain when exiting his vehicle in a parking lot. He slipped on ice and fell,
hitting the vehicle door on the way to the pavement. The injury occurred at approximately 9:50
a.m. On the reverse side of the form, appellant’s regular work hours were recorded as Monday
through Friday, 6:00 a.m. to 3:30 p.m. He returned to work that same date at 10:00 a.m.
Appellant first received medical care on February 28, 2011. His supervisor checked the box
marked “yes” when asked if his knowledge of the facts about the injury agreed with statements
of the employee and/or witness.
In a February 25, 2011 medical report, Dr. Douglas C. Fuller, Board-certified in
occupational medicine, reported that on February 17, 2011 appellant slipped and fell on ice in the
parking lot outside of building 847. Appellant complained of pain since his injury and came
down on his right flank and hurt his neck and right shoulder blade. Dr. Fuller noted a history of
chronic neck problems and cervical fusion. Upon physical examination, he diagnosed neck
sprain and noted a work injury from February 17, 2011. Dr. Fuller opined that appellant’s
condition was caused by a fall due to tripping, slipping, or stumbling and noted the location of
the accident as industrial premises. Appellant was released to work without restrictions and
advised to follow up with his treating physician.
Appellant submitted additional medical and diagnostic reports dated February 28, 2011
through February 28, 2012 pertaining to his neck injury.2 Per OWCP procedures, his claim was
administratively closed for a minor injury with minimal or no lost time from work.3
In a May 19, 2014 CA-110 telephone note, appellant requested that his claim be
reopened. The CE informed him that he would need to file a claim for recurrence (Form CA-2a)
due to the break in his treatment.
In a May 29, 2014 Form CA-2a, appellant filed a recurrence claim for medical treatment
only. He noted the date of the original injury as February 17, 2011 and the date of recurrence as
May 20, 2014 reporting right arm, hand, and neck pain since he slipped on the ice. Appellant
stated that he worked with a computer, but had right-sided pain on and off. He further stated that
using his keyboard caused his right hand and fingers to tingle along with pain in the neck and
shoulder which he attributed to his original injury. Appellant explained that his right arm was
diagnosed with carpal tunnel and ulnar nerve issues, but that he never had a magnetic resonance
imaging (MRI) scan of the neck. He noted a history of prior injuries including trigeminal
neuralgia surgery on December 19, 2011 four right shoulder surgeries spanning from
2

The Board notes that appellant also submitted medical reports dated November 20 through December 18, 2012
pertaining to bilateral arm injuries under a different Claim No. xxxxxx206. The record for Claim No. xxxxxx206 is
not before the Board.
3

An uncontroverted traumatic injury claim in which medical bills are not expected to exceed $1,500.00 and a
wage-loss claim has not been filed may be handled through administrative review. These cases are automatically
closed upon case creation, without claims examiner (CE) review. Federal (FECA) Procedure Manual, Part 2 -Claims, Initial Development of Claims, Chapter 2.800.2(d) (June 2011).

2

September 27, 2011 through October 30, 2012, left ulnar nerve surgery on November 20, 2012
and February 19, 2013, right ulnar nerve surgery on December 18, 2012, left carpal tunnel
surgery on December 17, 2013, and right carpal tunnel surgery on January 14, 2014. On the
reverse side of the form, appellant’s supervisor stated that he was fully capable of work
following the initial injury and no accommodations or adjustments were made to his regular-duty
assignments.
In support of his claim, appellant submitted medical and diagnostic reports dated June 18
through July 8, 2014.
By letter dated September 11, 2014, OWCP notified appellant that his claim was initially
administratively handled to allow medical payments, as his claim appeared to involve a minor
injury resulting in minimal or no lost time from work. However, appellant’s claim had been
reopened for consideration of the merits because he filed a claim for a recurrence. He was
advised that no action could be taken on his Form CA-2a claim until his case had been
adjudicated. Appellant was further advised that the evidence of record was insufficient to
establish his traumatic injury claim. OWCP requested he submit a response to a questionnaire in
order to substantiate the factual basis of his claim and a medical report from his attending
physician including a diagnosis, history of the injury, and a physician’s opinion on causal
relationship supported by medical rationale. The questionnaire requested appellant describe the
nature of his injury, how the injury occurred, witness statements, the immediate effects of his
injury, any other injuries sustained as a result of the incident, any prior similar injuries, the time
of injury, the work activities he was engaged in at the time of injury, and whether he was
required by his employing establishment to park in the lot. He was given 30 days to provide the
requested information. No further evidence was received.
By decision dated January 29, 2015, OWCP denied appellant’s claim finding that the
evidence did not establish that the incident occurred as alleged. It noted that he failed to
establish fact of injury because he did not respond to the questionnaire that was sent with the
September 11, 2014 development letter.
On April 16, 2015 appellant requested reconsideration of OWCP’s January 29, 2015
decision. He stated that on February 17, 2011 he slipped and fell on ice, causing, injury to his
neck and right elbow. Appellant stated that he was working to get this case reopened and had
another existing claim for carpal tunnel and elbow surgeries under Claim No. xxxxxx206. He
had been working with his CE under that claim to determine whether his right arm injury was
related to his neck injury and was advised that the neck would have to be treated under this
Claim No. xxxxxx016.
In support of his claim, appellant submitted additional medical reports dated April 24,
2014 through February 26, 2015.
By decision dated May 11, 2015, OWCP denied appellant’s request for reconsideration
finding that he neither raised substantive legal questions nor included new and relevant evidence
establishing fact of injury. It noted that appellant failed to respond to OWCP’s questionnaire and
did not provide a factual statement which would establish the factual portion of his claim.

3

LEGAL PRECEDENT -- ISSUE 1
Under FECA, and its implementing regulations, an employee bears the burden of proving
all essential elements of a claim, including that he or she experienced a specific event, incident or
exposure at the time, place, and in the manner alleged, and that the alleged injury occurred in the
performance of duty.4 Board precedent requires that an injury sustained in the performance of
duty must have arisen: (1) at a time when the employee may reasonably be stated to be engaged
in his or her masters business; (2) at a place where he or she may reasonably be expected to be in
connection with the employment; and (3) while he or she was reasonably fulfilling the duties of
his employment or engaged in doing something incidental thereto.5
The Board has included within the performance of duty a reasonable time before and
after work to allow for coming and going, as well as personal ministrations, such as lunch or
bathroom breaks, engaged in for the benefit of the employing establishment.6 If the injury does
not take place during those periods or on employing establishment premises, the Board will place
special emphasis on whether the employee was engaged in an activity related to fulfilling the
duties of his employment.7
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to establish that he sustained an injury in the
performance of duty on February 17, 2011.
Appellant alleged that on February 17, 2011 he slipped and fell on ice in an employing
establishment parking lot, causing a neck injury.8 He has not provided the sufficient detail
needed to establish that the incident occurred in the manner alleged, and in the performance of
duty.9 Appellant stated that the incident occurred in the Air Force base parking lot. It is unclear
if he was in the performance of duty when this incident occurred.
Appellant’s CA-1 form lacks a sufficient explanation to establish that the alleged incident
occurred in the performance of duty, as alleged. He reported that his injury occurred when
exiting his vehicle in a parking lot and noted the time of injury as 9:50 a.m. On the reverse side
of the form, appellant’s work start time is noted as 6:00 a.m. In the compensation field, to occur
in the course of employment, in general, an injury must occur: (1) at a time when the employee
may reasonably be stated to be engaged in his or her master’s business; (2) at a place where he or
she may reasonably be expected to be in connection with the employment; and (3) while he or
4

Supra note 1; 20 C.F.R. § 10.115.

5

Mary Keszler, 38 ECAB 735 (1987).

6

George E. Franks, 52 ECAB 474 (2001).

7

See Venicee Howell, 48 ECAB 414 (1997); Narbik A. Karamian, 40 ECAB 617 (1989).

8

An injury occurring on Air Force base property constitutes an injury on premises. See generally L.L., Docket
No. 10-2384 (issued July 15, 2011).
9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

4

she was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.10 It is unclear whether the incident occurred during appellant’s normal work
hours or if he was just arriving for the start of his shift. It is also unclear why he was exiting his
vehicle at this time and whether this act related to his federal employment duties. The record is
silent on what, if any, employment duties appellant was performing at 9:50 a.m. in the parking
lot where he sustained his injury. Appellant failed to respond to OWCP’s questionnaire and his
April 16, 2015 request for reconsideration did not provide further insight to the questions raised.
He failed to provide an adequate description of the February 17, 2011 employment incident
which he believed caused or aggravated his condition to establish that an injury occurred at the
time, place, and in the manner alleged, and in the performance of duty. Thus, appellant did not
meet his burden of proof.11
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.12 Section 10.608(b) of OWCP regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.13
ANALYSIS -- ISSUE 2
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In his July 13, 2012 application for reconsideration, he did not show that OWCP erroneously
applied or interpreted a specific point of law. Appellant did not advance a new and relevant legal
argument. He argued only that his injury was employment related and that he followed proper
protocol once he realized his cervical injury was not related to Claim No. xxxxxx206.
10

See Vincent A. Rosenquist, 54 ECAB 166, 168 (2002); James E. Chadden, Sr., 40 ECAB 312 (1988).

11

Given that appellant did not establish an employment incident in the performance of duty, further consideration
of the medical evidence is unnecessary. See Bonnie A. Contreas, 57 ECAB 364, 368 n.10 (2006).
12

D.K., 59 ECAB 141 (2007).

13

K.H., 59 ECAB 495 (2008).

5

The underlying issue on appeal involves fact of injury; whether the incident occurred at
the time, place, and in the manner alleged within the performance of duty. Appellant’s
reconsideration request does not provide greater detail pertaining to whether the incident
occurred within the course of his employment. He failed to respond to OWCP’s September 11,
2014 questionnaire. Instead appellant submitted new evidence in the form of medical reports.
While these documents have some connection to his claim, they are not relevant to the issue for
which OWCP denied appellant’s claim, the failure to establish that the incident occurred in the
performance of duty at the time, place, and in the manner alleged. Therefore, these documents
do not constitute a basis for reopening appellant’s claim.14 A claimant may obtain a merit review
of an OWCP decision by submitting new and relevant evidence. In this case, appellant failed to
submit any new and relevant evidence addressing that his February 17, 2011 injury occurred in
the performance of duty.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on February 17, 2011. OWCP properly denied his
request for reconsideration.

14

David J. McDonald, 50 ECAB 185 (1990).

6

ORDER
IT IS HEREBY ORDERED THAT the May 11 and January 29, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 8, 2015
Washington, DC

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

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

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

7