United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF DEFENSE, DEPENDENT
SCHOOL, Fort Campbell, KY, Employer
__________________________________________

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

Docket No. 09-2060
Issued: July 23, 2010

Case Submitted on the Record

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

JURISDICTION
On August 10, 2009 appellant filed a timely appeal of a July 22, 2009 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(e), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
wage-loss compensation effective July 19, 2007; and (2) whether appellant met her burden of
proof to establish that she had any continuing disability after July 19, 2007.
FACTUAL HISTORY
On August 10, 1971 appellant, then a 33-year-old secretary, filed an occupational disease
claim alleging that she developed a rash on her arms and hands from exposure to printed inks
while using a printing machine. She originally stopped work on August 3, 1971 and returned on
October 15, 1971. Appellant’s rash redeveloped on October 28, 1971 on which date she stopped
work and did not return. The Office accepted her claim for contact dermatitis. It subsequently

expanded the claim to include asthma and allergic rhinitis.
compensation benefits.

The Office paid appellant

Dr. George Kurita, a Board-certified dermatologist, treated appellant several times
following the acceptance of her claim. On October 16, 1979 he opined that her prognosis was
good to excellent if she could strictly avoid printed material and inks. On May 2, 1980
Dr. Kurita noted that appellant’s condition carried permanent residual disability such that she
could not be reasonably expected to tolerate further exposure to printed materials without
reactivation of her condition. He further noted that her condition was irreversible but that she
could work if she avoided printed materials.
In a January 5, 1983 report, Dr. James P. Fields, Board-certified in dermatology and
allergy and immunology and an Office referral physician, opined that appellant had continuing
hand dermatitis on the grasping surfaces of her hands without employment therefore making it
very likely that employment involving additional use of her hands would aggravate her
condition. He advised that she could be employable if her employment did not involve use of
her hands and would not bring her into contact with substances to which she was sensitized.
Dr. Fields indicated that appellant’s skin condition was permanently disabling and recommended
avoiding local contact with primary irritants and all allergic substances.
On September 17, 2003 the Office referred appellant to Dr. Artis P. Truett, III, a Boardcertified dermatologist, for a second opinion evaluation to determine her condition and disability
for employment. In a June 15, 2004 report, Dr. Truett noted that she had latex and rubber
allergies as well as respiratory problems. He also noted that appellant’s work-related contact
dermatitis had resolved and that there was no direct relationship between contact dermatitis and
her respiratory symptoms. Dr. Truett opined that she could experience contact dermatitis if she
returned to work due to her allergies.
On January 5, 2005 February 9 and October 6, 2006, the Office requested that appellant
submit a medical report from her physician regarding the status of her employment-related
conditions and her ability to work.
On November 16, 2006 the Office referred appellant with a statement of accepted facts to
Dr. Kenneth Anderson, an internist Board-certified in pulmonary disease, and Dr. Stephen
Smith, a Board-certified dermatologist, for second opinion evaluations to assess her work-related
condition and to determine the extent of her disability.
In a December 19, 2006 report, Dr. Anderson stated that the pulmonary function testing
(PFT) performed during examination revealed 83 percent forced vital capacity (FVC) and 79
percent forced expiratory volume in 1 second (FEV1). This PFT revealed early/mild restricted
lung defect with moderate decrease in diffusion capacity carbon monoxide, but it did not suggest
an obstructive lung disease as the residual volume was low and the total lung capacity was also
low normal. Dr. Anderson noted that a chest x-ray taken during examination did not
demonstrate any definitive abnormalities. He advised that appellant reported worsening
symptoms over the last five or six years and related this to her “asthma.” Dr. Anderson noted, if
this is “job related,” possibilities could include subacute hypersensitivity pneumonitis or,
alternatively and most likely, a reactive airway dysfunction syndrome and irritant-induced

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asthma. He indicated that appellant’s asthma could be subacute hypersensitivity pneumonitis or
mostly likely reactive airway dysfunction syndrome and irritant-induced asthma. Dr. Anderson
noted that the PFT during examination was abnormal, but without previous PFT results he could
not ascertain whether this was a chronic problem related to abnormal PFTs such as residual
reactive airway dysfunction syndrome or the development of new interstitial lung disease
process. He opined that, based on appellant’s history, she was physically capable of working as
long as there were no significant exposures to the allergens identified by her allergist.
Dr. Anderson also advised that her current limitations were permanent as they had been
longstanding, but that previous PFT results would be beneficial to prove the stability of the
present lung dysfunction. He also recommended a chest computerized tomography (CT) scan to
rule out interstitial lung disease process. In a work capacity evaluation of the same date,
Dr. Anderson indicated that appellant was not able to perform her usual job but that she could
work full time with restrictions on her exposures.
In a December 28, 2006 report, Dr. Smith noted that examination of appellant’s hands
revealed normal skin without any dermatological disease or abnormal findings. He opined that
her dermatitis has resolved without residuals. Dr. Smith opined that there were no objective
findings to support disability from the work injury. He explained that appellant had a history of
exposure to printing ink and cleaning fluids from a mulilith 86 printing machine, but that such
machine was no longer in use. Dr. Smith noted that the only recorded patch test was performed
in 1974 and revealed a nickel allergy. He stated that other subsequent testing was for respiratory
allergens but that there was no recorded testing for printing materials. Dr. Smith indicated that
appellant’s history of multiple respiratory allergies, upper respiratory symptoms and sensitive
skin were consistent with a diagnosis of atopy. He opined that exposure to a secretarial work
environment would not include any exposure to printing inks or fluids as current printers used
ink within cartridges. Dr. Smith explained that appellant’s problem with ink in 1970 was most
likely an irritant contact dermatitis typical for atopic patients and would not occur in the current
workplace. He advised that she had complete work capacity. Dr. Smith noted that appellant
might encounter workplace irritants that could exacerbate her hands but that these items could be
tested on her skin. He opined that there were no objective dermatologic findings, no limitations
on her work and no demonstrable permanent disability. In a work capacity evaluation of the
same date, Dr. Smith diagnosed dermatitis and indicated that appellant was able to perform her
usual job within restrictions to airborne particles and fumes. He indicated that her restrictions
were only given to prevent a possible future injury.
On January 11, 2007 the Office requested an addendum report from Dr. Anderson upon
reviewing previous PFT and CT scan results.
In a February 23, 2007 supplemental report, Dr. Anderson noted that review of a
September 29, 2000 PFT report revealed 73 percent FVC and 80 percent FEV1 and an October 8,
2001 report revealed 79 percent FVC and 75 percent FEV1. He indicated that these results were
comparable to the PFT performed during his December 19, 2006 evaluation, which demonstrated
overall stability of lung dysfunction. Dr. Anderson opined that appellant’s current limitations
were permanent. He also reviewed a January 29, 2007 chest CT scan that revealed mild
emphysematous changes in the upper lung zones and no evidence of interstitial lung disease.
Dr. Anderson opined that appellant was not developing a new interstitial lung disease process.

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He also reiterated that she had the physical capability to work as long as no significant exposures
to allergens were reported by her allergist.
On March 13, 2007 the Office requested a supplemental report from Dr. Anderson
regarding appellant’s work-related residuals and work capacity.
In a May 31, 2007 supplemental report, Dr. Anderson noted that he outlined appellant’s
respiratory history in his previous report and related it to her present work up. He reiterated that
she has the physical capability to work as a secretary from a respiratory standpoint, but should
have no significant exposures. Dr. Anderson further indicated that, if appellant could prevent
exposures, she would not worsen her respiratory condition. He noted that he could not comment
on her dermatitis condition but that she had maintained maximum medical therapy and adequate
lung function.
On June 15, 2007 the Office proposed to terminate appellant’s wage-loss benefits finding
that Drs. Smith and Anderson represented the weight of the medical evidence establishing that
she was no longer disabled from work due to her accepted condition.
In a July 9, 2007 statement, appellant asserted that the reports from her treating physician
Dr. Ha Le, a Board-certified allergist and immunologist, and Dr. Anderson supported that she
remained disabled. She requested that the Office make her disability permanent as her condition
had not significantly changed over the years. Appellant indicated that there was no employment
situation for her given her limitations. She also submitted a June 19, 2007 letter to Dr. Le
requesting that he respond to the Office’s request for a medical report.
In a July 9, 2007 report, Dr. Le, a Board-certified allergist and immunologist, noted
treating appellant since October 2001 for contact dermatitis, urticaria, allergic rhinosinusitis and
allergic bronchitis. He noted her long history of frequent skin breaking out, itching, hand rash,
congestion, chest tightness and shortness of breath. Dr. Le opined that appellant’s respiratory
and skin condition was much better overall but that she still complained of symptoms when in
certain areas or outside.
In a July 19, 2007 decision, the Office terminated appellant’s wage-loss benefits effective
that day. It noted that she remained entitled to medical benefits.
On August 16, 2007 appellant requested an oral hearing, which was held on
February 26, 2008. In a July 30, 2007 treatment note, a physician’s assistant diagnosed allergic
dermatitis and noted her complaint of swollen eyes and itching forehand secondary to allergies.
A February 28, 2008 statement from an employment counselor noted that she reviewed
appellant’s medical history but did not find work that appellant was able to do. The employment
counselor opined that appellant was not employable as she needed to work in a controlled
environment and did not have the required skills. She further noted that she could not find a
workplace with a controlled environment that could hire appellant based on the skills appellant
possessed. Appellant also submitted a 1994 and a 2000 treatment record, several articles on
various allergens as well as witness statement from people aware of her allergy.

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In a report dated October 23, 2001, Dr. Le noted that appellant had an allergy evaluation
in 1970 but that her respiratory congestion had worsened in the last five years. He diagnosed
latex allergy by history, contact urticaria, hand dermatitis, allergic sinusitis, allergic bronchitis,
severe seasonal perennial allergic rhinitis and drug adverse reaction to penicillin and sulfa. In a
February 11, 2008 report, Dr. Le reiterated his opinion that appellant’s skin and respiratory
condition was better overall but that she still complained of symptoms.
On March 17, 2008 Dr. Carol Worrill, an osteopath specializing in family medicine,
reviewed appellant’s medical record, noting the 1971 injury and reports from Drs. Le and
Anderson who noted that appellant could not work where she had significant exposures. She
opined that appellant continued to suffer from her original work-related injury and was unable to
work.
In a June 9, 2008 decision, an Office hearing representative affirmed the July 19, 2007
decision.
On May 14, 2009 appellant requested reconsideration based on an April 24, 2009 report
from Dr. Chris Godfrey, a Board-certified internist. On April 24, 2009 Dr. Godfrey indicated
that she had been his patient for the past year. He noted that chemical exposure in 1971 led to
permanent conditions including dermatitis, asthma, allergic rhinitis and urticaria. Dr. Godfrey
also noted that appellant’s compensation had been halted due to a lapse in paperwork. He
indicated that she had avoided allergens that could trigger her condition and therefore was unable
to work as she would be unable to control a workplace environment. Dr. Godfrey noted that
appellant developed asthma, urticaria and laryngeal edema if exposed to certain types of
environmental triggers. He opined that she still had the same injuries that she sustained on the
job and that she would not ever be able to be employed in a public workplace due to her
condition.
In a July 22, 2009 decision, the Office denied modification of its June 9, 2008 decision
finding the new evidence insufficient to establish that appellant continued to be disabled from
her accepted work injury.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.1 After it has determined that, an employee has disability
causally related to his federal employment, the Office may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.2 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.3
1

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
2

Vivien L. Minor, 37 ECAB 541 (1986).

3

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

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ANALYSIS -- ISSUE 1
The Office accepted that appellant’s work injury caused contact dermatitis, asthma and
allergic rhinitis. It paid her compensation before terminating her wage-loss compensation
effective July 19, 2007 based on the opinions of second opinion physicians Drs. Smith and
Anderson. The Board finds that the Office met its burden to establish that appellant was no
longer disabled from her job effective July 19, 2007.
In a December 28, 2006 report, Dr. Smith opined that appellant’s dermatitis resolved
without residuals as his examination of her hands revealed normal skin without dermatological
disease or abnormal findings. He further opined that there were no objectionable findings to
support continued disability as the work injury was due to exposure to printing inks from a
printing machine that was currently obsolete. Dr. Smith explained that current secretarial work
environments did not contain exposure to printing ink as current printers store ink inside
cartridges and therefore current work environments would not cause irritant contact dermatitis as
it did at the time of appellant’s original work injury. He explained that her problem with ink in
1970 was likely an irritant contact dermatitis typical for atopic patients and would not occur in
current workplaces. Dr. Smith opined that appellant had no objective dermatologic findings, no
limitations on her work and no demonstrable permanent disability. After reviewing appellant’s
record and conducting his own examination, he was able to conclude that she had no continued
disability related to her accepted work injury and that she was able to work without restrictions.
In a December 19, 2006 report, Dr. Anderson determined that, based on appellant’s
medical history, she was able to work full time as a secretary with restrictions on exposure to her
allergens. He indicated that her restrictions were only to prevent a possible future injury.
Dr. Anderson further supported his conclusion with his finding that the PFT conducted on
examination revealed early/mild lung defect but did not suggest an obstructive lung disease and
also the chest x-ray during examination revealed no definitive abnormalities. On February 23,
2007 he reiterated that appellant could work full time without significant exposure to her
allergens. Dr. Anderson explained that, after comparing previous PFT reports with his
December 19, 2006 PFT findings, he determined that appellant had stable lung dysfunction.
Also, his review of a previous chest CT scan supported that appellant did not develop new
interstitial lung disease process. In a May 31, 2007 report, Dr. Anderson opined that, as she had
adequate lung function and had maintained maximum medical therapy, she was able to work full
time from a respiratory standpoint, in spite of permanent limitations posed by exposure to
allergens identified by her allergist. The Board notes that, while he noted restrictions on
exposure to fumes and airborne particles, he indicated that this was only to prevent a possible
future injury. Dr. Anderson’s restrictions appear to be prophylactic in nature. However, the
possibility of future injury does not constitute a basis for the payment of compensation under the
Federal Employees’ Compensation Act.4
The Board finds that Drs. Smith and Anderson’s reports represent the weight of the
medical evidence and that the Office properly relied on their reports in the termination of
appellant’s wage-loss benefits. The opinions of Drs. Smith and Anderson are based on proper
4

See I.J., supra note 1.

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factual and medical history as they had a statement of accepted facts and were provided with her
medical record. Moreover, they analyzed this information in addition to their own findings on
examination to reach a reasoned conclusion regarding appellant’s condition.5
While the record contains medical evidence providing some support for causal
relationship, this evidence is insufficient to create a conflict or overcome the reports of
Drs. Smith and Anderson. Dr. Le’s reports dated July 9, 2007 and February 22, 2008, opined
that appellant’s skin and respiratory conditions were better overall but that she still complained
of symptoms. He did not address whether she had any continued disability from work due to her
accepted work injury.6 Similarly, Dr. Le’s October 23, 2001 report diagnosed appellant’s
condition without providing any opinion on causal relationship. Additionally, Dr. Worrill’s
March 17, 2008 report generally concluded that, based on appellant’s record, she had continued
disability and residuals due to the accepted work injury. She did not provide a reasoned medical
explanation regarding the basis of her conclusion. The Board has held that a medical report is of
limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale.7 The record also contains
treatment notes that predate the period of the termination of compensation. Also submitted was a
July 30, 2007 physician’s assistant report, which has no probative value as physician’s assistants
are not considered physicians under the Act.8 Likewise, a statement from an employment
counselor is of no probative value regarding appellant’s ability to work since the issue of
disability for work is an issue that must be resolved by competent medical evidence.9
Consequently, the Board finds that the weight of the medical evidence properly rests with
Drs. Smith and Anderson and establishes that appellant’s disability for work ended by
July 19, 2009.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence

5

See Naomi Lilly, 10 ECAB 560 (1959) (the opportunity for and thoroughness of examination, the accuracy and
completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested and the
medical rationale expressed in support of the physician’s opinion are factors which enter into the weight of an
evaluation).
6

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
7

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009).

8

See George H. Clark, 56 ECAB 162 (2004) (the Board has noted a physician’s assistant is not a physician as
defined under the statute and therefore any report from such individual does not constitute competent medical
evidence which, in general, can only be given by a qualified physician); see also 5 U.S.C. § 8101(2).
9

R.C., 59 ECAB ___ (Docket No. 07-2042, issued June 3, 2008).

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that she had an employment-related disability, which continued after termination of
compensation benefits.10
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.11
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that she has any continued disability
related to her accepted employment injury. The medical evidence submitted after the hearing
representative’s June 9, 2008 decision, affirming the termination of wage-loss benefits, does not
establish that she had any continued disability from her work injury.
In an April 24, 2009 report, Dr. Godfrey opined that appellant still experienced the 1971
work injury and would never be able to work in a public place, as she would be unable to control
her workplace environment to avoid allergens. However, in this broad statement, he failed to
identify specific environmental conditions that still rendered her disabled and he did not explain
how such conditions related to the accepted conditions. As noted, appellant’s burden requires
submitting rationalized medical evidence that supports causal relationship.12 Furthermore,
Dr. Godfrey indicated that her work would result in allergen exposure and would cause
symptoms. Board case law reflects that a fear of future injury is not compensable.13 Dr. Godfrey
did not provide a reasoned explanation regarding why particular exposures in the workplace
would cause disability due to an accepted condition. Consequently, appellant did not establish
that she had continuing disability after July 19, 2007 causally related to her employment injury.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
benefits effective July 19, 2007. The Board also finds that she did not meet her burden of proof
to establish that she had any continuing condition or disability after July 19, 2007.

10

See supra note 4.

11

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

12

A physician’s opinion on causal relationship between a claimant’s disability and an employment injury is not
conclusive simply because it is rendered by a physician. To be of probative value, the physician must provide
rationale for the opinion reached. Where no such rationale is present, the medical opinion is of diminished probative
value. See T.M., supra note 7.
13

See supra note 4.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 22, 2009 is affirmed.
Issued: July 23, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
U.S. POSTAL SERVICE, THOUSAND OAKS
POST OFFICE, THOUSAND OAKS, CA,
Employer
__________________________________________

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

Docket No. 20-1186
Issued: February 3, 2021

Case Submitted on the Record

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

JURISDICTION
On May 22, 2020 appellant filed a timely appeal from a December 2, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated October 29, 2018, to 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 over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On July 31, 2018 appellant, then a 63-year-old sales and services distribution associate,
filed an occupational disease claim (Form CA-2) alleging that he developed left cervical
radiculopathy and muscle spasm due to repetitive factors of his federal employment.3 He indicated
that he first became aware of his condition in 1992 and realized that it resulted from his federal
employment on July 28, 2018. Appellant stopped work on July 28, 2018.
OWCP received a July 27, 1993 cervical spine magnetic resonance imaging (MRI) scan
report, which showed a small left posterior paracentral disc protrusion at the C5-6 level and
questionable mild straightening of normal cervical lordotic curvature. A February 15, 2008
cervical spine MRI scan report revealed spondylosis with disc space narrowing and protrusion
causing mild cord compression at C5-6, smaller disc protrusions at C4-5 and C6-7, and mild
uncovertebral joint hypertrophy.
In a development letter dated August 14, 2018, OWCP advised appellant of the type of
medical and factual evidence necessary to support his claim and provided a questionnaire for his
completion. It afforded him 30 days to submit the requested information.
On September 4, 2018 appellant responded to OWCP’s development letter. He indicated
that he worked five days a week at the window and distributing mail into “P.O. [post office]
boxes.” Appellant described his specific work duties and how long he performed each activity.
He also noted a specific incident when he injured his left hand and finger while at work and
provided a handwritten statement from a coworker who observed that his finger was bent.
Appellant also submitted medical evidence, including a July 28, 2018 consent for
procedure note, a July 28, 2019 medical excuse form, a July 28, 2018 urgent care examination
note, and an August 19, 2018 cervical spine MRI scan report.
In an August 30, 2018 letter, Dr. Hema Vaidya-Nathan, who specializes in family
medicine, reported that on July 28, 2018 appellant began to experience a significant amount of
neck pain radiating to his arms while performing his repetitive work duties. She noted that he
received medical treatment from urgent care and discussed those reports. Dr. Vaidya-Nathan
provided examination findings and diagnosed cervical disc disease with radiculopathy and
trapezius myofascitis. She indicated that appellant could return to work with restrictions.

3

The record reflects that appellant has a previously accepted July 11, 1992 traumatic injury under OWCP File No.
xxxxxx237 for a cervical strain. Appellant also filed a separate claim for a February 20, 2008 employment injury
under OWCP File No. xxxxxx499, which was denied.

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In a prescription note dated August 30, 2018, Dr. Vaidya-Nathan indicated that appellant
had work-related neck pain and radiculopathy that occurred on July 28, 2018.
By decision dated October 29, 2018, OWCP denied appellant’s occupational disease claim
finding that the medical evidence of record was insufficient to establish a medical condition
causally related to the accepted employment factors.
On November 1, 2019 appellant requested reconsideration.
Appellant submitted an October 23, 2019 letter by Dr. Vaidya-Nathan, wherein she noted
that his employment duties involved standing in front of the counter, stamping, lifting, moving,
and shifting. Dr. Vaidya-Nathan also indicated that on July 18, 2018 he sustained an injury at
work and experienced neck pain radiating down into his upper extremities. She reported that
appellant currently complained of significant pain moving his neck, with pain radiating to the
upper extremities. Dr. Vaidya-Nathan noted that he was able to work on certain days, but when
his injury was triggered by repetitive motion, his pain worsened and he was unable to work. She
provided examination findings and indicated that a cervical spine MRI scan revealed cervical
lordosis. Dr. Vaidya-Nathan opined that appellant had a permanent condition requiring
intermittent relief from work to avoid repetitive motion. She requested that OWCP allow disability
benefits, especially during the time when he was unable to work.
By decision dated December 2, 2019, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
request for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.4 Timeliness is determined by the document receipt date of
the request for reconsideration as is indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS).5 The Board has found that the imposition of the oneyear time limitation does not constitute an abuse of the discretionary authority granted OWCP
under section 8128(a) of FECA.6
OWCP may not deny a request for reconsideration solely because it was untimely filed.
When a request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether the request demonstrates clear evidence of error.7 OWCP’s
regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,

4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b) (February 2016).

6

G.L., Docket No. 18-0852 (issued January 14, 2020).

7

20 C.F.R. § 10.607(b); R.S., Docket No. 19-0180 (issued December 5, 2019).

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notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
request demonstrates clear evidence of error on the part of OWCP.8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.9 It is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion.10 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 evidence of error on the
part of OWCP.11 The Board makes an independent determination of whether a claimant has
demonstrated clear evidence of error on the part of OWCP such that it abused its discretion in
denying merit review in the face of such evidence.12
OWCP’s procedures further provide that the term clear evidence of error is intended to
represent a difficult standard.13 The claimant must present evidence that on its face shows that
OWCP made an error (for example, proof that a schedule award was miscalculated). Evidence
such as a detailed, well-rationalized medical report that, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.14
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.15 Section 10.126 of Title 20 of the
Code of Federal Regulations provides that a decision shall contain findings of fact and a statement
of reasons.16 The Board has held that the reasoning behind OWCP’s evaluation should be clear
enough for the reader to understand the precise defect of the claim and the kind of evidence which
would overcome it.17

8

Id.; supra note 5 at Chapter 2.1602.5(a).

9

20 C.F.R. § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663,
665 (1997).
10

See G.B., Docket No. 19-1762 (issued March 10, 2020); Leona N. Travis, 43 ECAB 227, 240 (1991).

11

B.W., supra note 9.

12

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

13

Supra note 5 at Chapter 2.1602.5(b).

14

G.B., supra note 10; A.R., Docket No. 15-1598 (issued December 7, 2015).

15

5 U.S.C. § 8124(a).

16

20 C.F.R. § 10.126.

17

C.M., Docket No. 19-1211 (issued August 5, 2020); L.M., Docket No. 13-2017 (issued February 21, 2014); supra
note 5 at Chapter 2.1400.5 (all decisions should contain findings of fact sufficient to identify the benefit being denied
and the reason for the disallowance).

4

ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
OWCP received appellant’s request for reconsideration on November 1, 2019 which was
more than one year after the last merit decision, dated October 29, 2018. As appellant’s request
for reconsideration was untimely filed, he must demonstrate clear evidence of error on the part of
OWCP.18
The Board further finds, however, that this case is not in posture for decision with regard
to whether appellant’s untimely request for reconsideration demonstrates clear evidence of error.
In support of his untimely request for reconsideration, appellant submitted an October 23,
2019 addendum letter from Dr. Vaidya-Nathan, who described his employment duties and
recounted his current complaints of significant neck pain radiating to the upper extremities.
Dr. Vaidya-Nathan opined that he had a permanent condition requiring intermittent relief from
work and requested that OWCP allow disability benefits, especially during the time when he was
unable to work. In its December 2, 2019 decision, OWCP acknowledged appellant’s submission
of a “medical record.” However, it provided no discussion or explanation regarding why
Dr. Vaidya-Nathan’s October 23, 2019 letter had failed to demonstrate clear evidence of error.19
Thus, the Board finds that OWCP did not comply with the review requirements of FECA and its
implementing regulations.20 Appellant therefore could not understand the precise defect of the
claim and the kind of evidence which would overcome it.21
The Board will therefore set aside OWCP’s December 2, 2019 decision and remand the
case for findings of fact and a statement of reasons, to be followed by an appropriate decision on
appellant’s untimely reconsideration request.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. The Board further finds, however, that this case is not in
posture for decision with regard to whether his untimely reconsideration request demonstrates
clear evidence of error.

18

Supra note 8.

19

See M.M., Docket No. 20-0537 (issued September 24, 2020); see also R.T., Docket No. 19-0604 (issued
September 13, 2019).
20

See C.M., supra note 17.

21

Supra note 17 at Chapter 2.1400.5.

5

ORDER
IT IS HEREBY ORDERED THAT the December 2, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: February 3, 2021
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO & FIREARMS,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Debra Hauser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0415
Issued: April 13, 2018

Case Submitted on the Record

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

JURISDICTION
On December 14, 2016 appellant, through counsel, filed a timely appeal from a
November 16, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective June 8, 2016, as his accepted injuries had ceased
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

without residuals; and if so, (2) whether appellant met his burden of proof to establish continuing
disability and residuals after June 8, 2016.
On appeal counsel contends that the opinion of the impartial medical examiner was too
speculative to resolve the conflict of medical opinion.
FACTUAL HISTORY
OWCP accepted that on August 1, 2013 appellant, then a 50-year-old special response team
member, was manning the turret gun of an armored personnel vehicle that struck an obstacle
throwing him against a guardrail, then to the metal floor plates, causing a chest wall contusion, left
elbow contusion, left forearm contusion, right knee effusion, right lateral meniscus tear,
lumbosacral sprain, and other unspecified soft tissue disorders. He sought treatment in a hospital
emergency room that same day. Dr. Roland Medellin, an attending physician, diagnosed
contusions3 and prescribed medication. Appellant presented to the emergency room on August 19,
2013 with increased right flank pain. In an August 19, 2013 report, Dr. Medellin diagnosed
multiple contusions of the left elbow, forearm, and chest wall resulting from the August 1, 2013
armored vehicle incident.4
Dr. James Galbraith, an attending osteopath specializing in family practice, followed
appellant from October 28, 2013 to March 17, 2014. He diagnosed left forearm, elbow, and
lumbar strains, and internal derangement of the right knee.5 Appellant returned to full-time
modified-duty work.
Dr. Bradley Eames, an attending osteopath Board-certified in anesthesiology, followed
appellant from April 1 to December 2, 2014. He noted a history of a 2006 right knee arthroscopy,
with the subsequent August 1, 2013 work injury. Dr. Eames diagnosed lumbar facet joint
inflammation “secondary to direct trauma to the lumbar spine resulting in joint sprain and possible
joint capsular disruption,” lumbar facet joint inflammation, and traumatic effusion of the right knee
with possible internal derangement and cartilage tear. He noted that lumbar facet injections
improved appellant’s symptoms.
Dr. Greg T. Podleski, an attending osteopath Board-certified in orthopedic surgery,
provided reports from June 12, 2014 through January 26, 2015 diagnosing an acute right lateral
meniscus tear, and internal derangement and effusion of right knee due to the August 1, 2013 work

3

August 1, 2013 x-rays of the left forearm, left elbow, ribs, and right knee were normal. Cervical spine x-rays
showed degenerative changes from C5 through C7.
4
Appellant participated in physical therapy in September 2013, from January through April 2014, and July 2014
through July 2015. Dr. Julian Crutchfield, a chiropractor, working under the supervision of Dr. Ed Wolski, an
attending Board-certified anesthesiologist, performed manual manipulation and physical therapy modalities from
September 2015 through April 2016.
5
January 15, 2014 right knee x-rays showed mild spurring of the tibial spine and dorsal superior patellar spurring.
A March 7, 2014 lumbar magnetic resonance imaging (MRI) scan showed a broad-based L4-5 disc bulge associated
with facet hypertrophy, a left posterior paracentral disc protrusion at T12-L1 and L1-2, and mild disc space narrowing
and dehydration at T12-L1, L1-2, and L4-5.

2

injury. He recommended arthroscopic repair. Dr. Podleski opined that the August 1, 2013
workplace incident directly caused derangement of the lateral meniscus.6
Dr. Steven L. Remer, an attending Board-certified anesthesiologist, began treating
appellant on August 6, 2014 for chronic lumbar pain. He diagnosed facet arthrosis. On
October 30, 2014 Dr. Remer performed bilateral lumbar medial branch blocks at L4, L5, and S1.
In a January 12, 2015 report, he recommended a lumbar facet rhizotomy.
Dr. Podleski performed an authorized right knee arthroscopy on February 10, 2015, with
repair of the anterior horn of the lateral meniscus. During the procedure, he saw and photographed
a complete anterior cruciate ligament (ACL) tear not visible on MRI scans.7 Dr. Podleski
submitted periodic reports through December 28, 2015 opining that appellant’s right knee effusion
and complete ACL tear, with an “empty wall sign” visualized during February 10, 2015 surgery,
were directly related to the August 1, 2013 workplace injury when appellant was thrown against
the turret guardrail.
In an April 17, 2015 report, Dr. Robert Bayless, an attending Board-certified orthopedic
surgeon, related appellant’s complaints of severe, chronic right knee pain. On examination, he
found no ligamentous laxity, and no evidence of an ACL tear.
March 26, 2015 nerve conduction velocity (NCV) and electromyography (EMG) studies
of the lower extremities showed bilateral L5-S1 radiculopathy.
Dr. Wolski noted work restrictions on April 22, 2015 due to appellant’s postsurgical status.
In May 7, 2015 reports, Dr. Robert A. Helsten, Board-certified in pain management,
requested that OWCP expand appellant’s claim to accept a right ACL sprain. He explained that
when appellant was “thrown backward, then forward” against the turret ring on August 1, 2013,
his knees locked, causing hyperflexion and buckling, resulting in the ACL tear. Dr. Helsten noted
that a right knee MRI scan confirmed “degeneration of the anterior cruciate ligament at its tibial
attachment involving the posterior lateral bundle fibers.” He also requested that OWCP accept
lumbar radiculitis due to “torsional and compressive forces” in the August 1, 2013 incident,
causing L5 and S1 nerve root impingement. Dr. Helsten provided periodic progress reports.
On October 12, 2015 OWCP obtained a second opinion from Dr. R. David Bauer, a Boardcertified orthopedic surgeon. Dr. Bauer reviewed a statement of accepted facts (SOAF) and the
medical evidence of record. On examination, he found “diffuse, widespread nonanatomic
tenderness” in the lumbar spine, and full range of motion of the right knee without effusion or
6

On July 2, 2014 Dr. Donald Mackenzie, an attending Board-certified spine surgeon, diagnosed a lumbar sprain
and lumbar facet injury, caused by the August 1, 2013 incident as appellant’s body armor “had ridden up during the
flexion component” of the impact and “did not protect his back which was injured when it struck the ring.” A July 8,
2014 right knee arthrogram and MRI scan showed a small superior articular surface tear of the mid third of the anterior
horn of the lateral meniscus and a partial thickness chondral loss at the lateral femoral condyle.
7
A February 18, 2015 computerized tomography (CT) angiography scan showed right suprapatellar joint effusion.
A March 12, 2015 right knee MRI scan showed “[s]table mild cystic degeneration of the anterior cruciate ligament at
its tibial attachment involving the posterior lateral bundle fibers,” and a horizontal tear of the lateral meniscus.
Appellant participated in physical therapy in March and April 2015.

3

instability. Dr. Bauer diagnosed a right knee strain or effusion, status post lateral meniscus repair,
“[n]o evidence of [ACL] tear,” and history of a lumbar contusion. He asserted that there was no
evidence of an ACL sprain as there was no instability. Dr. Bauer opined that the ACL findings
observed by MRI scan were due to idiopathic degeneration and not to the August 1, 2013 workrelated injury. He opined that appellant no longer had evidence of a lumbar injury and
characterized abnormal EMG and NCV findings as false positives. Dr. Bauer attributed any
residual lumbar symptoms to idiopathic degenerative changes. He concluded that appellant could
perform full-duty work with no restrictions.
By notice dated November 3, 2015, OWCP proposed to terminate wage-loss compensation
and medical benefits based on Dr. Bauer’s opinion that the accepted injuries had ceased without
residuals. It afforded appellant 30 days to submit additional evidence or argument. Counsel
responded by December 2, 2015 letter, contending that Dr. Bauer’s medical reasoning was too
vague and inconsistent to represent the weight of the medical evidence. She submitted additional
evidence.
In a November 9, 2015 report, Dr. Donald Mackenzie, an attending Board-certified spine
surgeon, disagreed with Dr. Bauer’s opinion that appellant’s lumbar condition was “related to
degenerative change rather than injury.” He noted that appellant had “no back pain until the injury
of August 1, 2013 and had had continuous back pain since that time.” Dr. Mackenzie explained
that a “simple back strain would have healed,” and that appellant required facet injections and
physical therapy to increase strength and function.
Dr. Helsten explained in a November 30, 2015 report updated February 17, 2016 that it
was not uncommon for an MRI scan to not demonstrate a total ACL tear later visualized during
surgery. Based upon Dr. Podleski’s surgical experience, he concurred with his finding of right
ACL tear. Dr. Helsten disagreed with Dr. Bauer’s characterization of the March 26, 2015
electrodiagnostic studies showing L5-S1 radiculopathy as a “false positive.” He found the
electrodiagnostic results accurate and persuasive.8 Dr. Helsten administered lumbar trigger point
injections.
On January 28, 2016 Dr. Remer performed lumbar facet rhizotomy from L4 through S1,
authorized by OWCP.
OWCP determined that there was a conflict of medical opinion between Dr. Bauer, for the
government, and Dr. Podleski, for appellant, regarding whether the accepted injuries remained
active, and whether the accepted August 1, 2013 employment injury caused lumbar radiculopathy
and a right ACL tear. OWCP noted that one aspect of the conflict concerned the interpretation of
imaging studies, as Dr. Podleski had visualized an ACL tear during the authorized February 10,
2015 arthroscopy that had not been demonstrated by MRI scans. To resolve the conflict, OWCP
selected Dr. Bernie L. McCaskill, a Board-certified orthopedic surgeon, as impartial medical
specialist. OWCP provided a copy of the medical evidence of record and a SOAF.
Dr. McCaskill submitted a May 17, 2016 report reviewing the medical evidence of record.
On examination, he found positive supine straight leg raising tests at 20 degrees on the right and
8
January 20, 2016 lower extremity diagnostic studies interpreted by Dr. Helsten showed possible lumbar nerve root
disease.

4

30 degrees on the left, and diffuse right knee tenderness. Dr. McCaskill diagnosed “spondylogenic
lumbosacral spine pain, chronic, anatomic etiology undetermined (by history),” and “right knee
pain, chronic, anatomic etiology undetermined (by history).” He characterized right knee and
lumbar spine imaging study reports as demonstrating only idiopathic degeneration, with no
traumatic changes. Dr. McCaskill noted, however that there were no images in the evidence of
record from an August 9, 2013 cervical spine CT scan, a March 7, 2014 lumbar MRI scan, and
MRI scans of the right knee performed on March 7 and July 8, 2014, and March 12, 2015. He also
questioned Dr. Podleski’s surgical finding of an ACL tear as the copies of the arthroscopic
photographs provided by OWCP were of insufficient clarity. Dr. McCaskill thus concluded that
there were no objective findings showing a ligament rupture. Regarding lumbar radiculopathy, he
acknowledged that electrodiagnostic studies documented abnormal findings in both legs
inconsistent with appellant’s clinical history. Dr. McCaskill characterized appellant’s lumbar and
right knee complaints as disproportionate to objective imaging and electrodiagnostic findings. He
commented that although appellant had attained maximum medical improvement (MMI), it was
“possible that the patient might have some degree of significant residual symptoms from his workrelated injuries of August 1, 2013 without the presence of objective evidence of residual injuries.”
By decision dated June 9, 2016, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective June 8, 2016, finding that the medical evidence of record
established that the accepted injuries had ceased without residuals. It accorded Dr. McCaskill’s
opinion the special weight of the medical evidence.
On August 3, 2016 appellant, through counsel, requested reconsideration. Counsel
contended that the medical evidence of record established that the accepted conditions remained
active and partially disabling. She also asserted that Dr. Bauer’s report was too inconsistent to
have created a conflict with appellant’s physicians, and that Dr. McCaskill’s report was too vague
to represent the special weight of the medical evidence. Counsel provided additional evidence.
In a June 30, 2016 report, Dr. Wolski opined that appellant’s accepted conditions remained
active. As demonstrated by May 6, 2015 and July 5, 2016 physical performance tests and pain
questionnaires, appellant continued to have postoperative right knee pain when walking, standing,
and squatting, “postoperative debilitating pain in [appellant’s] right knee during and after daily”
exercise needed to maintain required fitness levels and chronic low back pain with bilateral
radiculopathy. Dr. Wolski contended that Dr. McCaskill’s opinion on the presence of the
diagnosed ACL tear was unreliable because OWCP failed to provide him with high quality
reproductions of the clear, detailed photographs Dr. Podleski obtained during the February 10,
2015 right knee arthroscopy. He explained OWCP’s low resolution, small format scans of the
surgical photographs were insufficient to demonstrate the diagnosed ACL tear. Dr. Wolski
provided clear, large format copies of Dr. Podleski’s surgical photographs. He opined that the
extension and compression forces of the August 1, 2013 accident on appellant’s lumbar spine were
sufficient to cause L4-5 and L5-S1 disc bulges as demonstrated by MRI scan, resulting in bilateral
L5 and S1 radiculopathy.9

9

Counsel also submitted physical therapy and prescription notes.

5

By decision dated November 16, 2016, OWCP denied modification of its termination
decision, finding that Dr. McCaskill’s opinion remained controlling, as it was thorough and “based
on all relevant evidence.”
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to
justify modification or termination of benefits.10 Having determined that an employee has a
disability causally related to his federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.11 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.12
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.13 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.14
Section 8123(a) of FECA provides that when there is a disagreement between the physician
making the examination for the United States and the physician of the employee, a third physician
shall be appointed to make an examination to resolve the conflict.15 When there are opposing
medical reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical evidence.16
In situations where there are opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual
background, must be given special weight.17
ANALYSIS
OWCP accepted that the August 1, 2013 work injury resulted in a chest wall contusion,
left elbow contusion, left forearm contusion, right knee effusion, right lateral meniscus tear,
lumbosacral sprain, and other unspecified soft tissue disorders.

10

Bernadine P. Taylor, 54 ECAB 342 (2003).

11

Id.

12

J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

13

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

14

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

15

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

16

Delphia Y. Jackson, 55 ECAB 373 (2004).

17

Anna M. Delaney, 53 ECAB 384 (2002).

6

OWCP terminated benefits and denied expansion of the claim to include a right ACL tear
and bilateral lumbar radiculopathy, based on the opinion of the impartial medical examiner,
Dr. McCaskill, a Board-certified orthopedic surgeon, who found that the accepted employmentrelated conditions had resolved without residuals. It bears the burden of proof to justify
modification or termination of benefits.18
Dr. Bauer, a Board-certified orthopedic surgeon and an OWCP second opinion physician,
opined in an October 12, 2015 report that the accepted conditions had ceased without residuals,
and that the accepted August 1, 2013 work-related injury did not cause a right ACL tear or lumbar
radiculopathy. Dr. Podleski, an attending Board-certified orthopedic surgeon, submitted reports
from February 10 through December 28, 2015 explaining that during a February 10, 2015 right
knee arthroscopy authorized by OWCP, he clearly visualized a complete ACL tear with an empty
wall sign. He submitted arthroscopic photographs from the procedure documenting this finding.
OWCP declared a conflict in medical opinion evidence between Dr. Bauer, the second opinion
physician, and Dr. Podleski on the issue of appellant’s continuing residuals and need for medical
treatment due to his accepted injuries and whether he had sustained a right ACL tear and lumbar
radiculopathy. These conflicts required referral to an impartial medical examiner pursuant to
5 U.S.C. § 8123(a).
OWCP referred appellant to Dr. McCaskill to resolve this conflict of medical opinion
evidence. It based its decision to terminate appellant’s wage-loss compensation and medical
benefits on Dr. McCaskill’s May 17, 2016 report.
In his May 17, 2016 report, Dr. McCaskill reviewed appellant’s history of injury and
history of medical treatment. His findings on physical examination were reported as normal,
except for bilaterally positive supine straight leg raising tests, and diffuse tenderness of the right
knee. Dr. McCaskill noted that he did not have the benefit of the films from the August 9, 2013
cervical spine CT scan, March 7, 2014 lumbar MRI scan, and March 7 and July 8, 2014, and
March 12, 2015 MRI scans of the right knee. Many of these studies were performed close to the
date of the August 1, 2013 employment injuries. It is also unclear whether Dr. McCaskill reviewed
the photos from Dr. Podleski’s authorized February 10, 2015 arthroscopic procedure which
allegedly demonstrated an ACL tear.
In determining the probative value of an impartial medical examiner’s report, the Board
considers the accuracy and completeness of the physician’s knowledge of the facts and medical
history, the care of analysis manifested and the medical rationale expressed by the physician on
the issues addressed to him or her by OWCP.19 As the films from the diagnostic imaging studies
of record were not available for Dr. McCaskill’s review, his opinion is based on an inaccurate
medical history. He did not have all the relevant diagnostic studies and attendant information to
provide informed answers to the questions put to him. Medical opinion evidence not based on a
complete factual and medical history is of greatly diminished probative value.20 As such,
18

M.P., Docket No. 16-0551 (issued May 19, 2017); see also K.B., Docket No. 15-0011 (issued April 7, 2015).

19

James T. Johnson, 39 ECAB 1252, 1256 (1988).

20
Victor J. Woodhams, 41 ECAB 345 (1989); see Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board
held that medical opinions based upon an incomplete history have little probative value).

7

Dr. McCaskill’s opinion is of insufficient probative value to carry the special weight of the medical
evidence as an impartial medical examiner.
Because Dr. McCaskill’s report lacks dispositive probative value, the Board finds that
OWCP erred in relying on his opinion as the basis to terminate wage-loss compensation and
medical benefits for the accepted employment injuries. The Board shall reverse the termination
of all compensation benefits, effective June 8, 2016 as OWCP has not met its burden of proof.21
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective June 8, 2016.22
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated November 16, 2016 is reversed.
Issued: April 13, 2018
Washington, DC

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

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

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

21

Curtis Hall, 45 ECAB 316 (1994).

22

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
DEPARTMENT OF THE ARMY, TEST &
EVALUATION COMMAND, White Sands, NM,
Employer
__________________________________________

)
)
)
)
)
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)
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)

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

Docket No. 18-1786
Issued: April 17, 2019

Case Submitted on the Record

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

JURISDICTION
On September 24, 2018 appellant filed a timely appeal from a June 28, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated September 30, 2015, to 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 over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly determined appellant’s request for reconsideration
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 28, 2012 appellant, then a 48-year-old information technology (IT) specialist
(customer support), filed a traumatic injury claim (Form CA-1) alleging that she sustained an
injury to her back on February 28, 2012 while moving and lifting metal desks while in the
performance of duty. OWCP accepted the claim for sprain of back, lumbar region. It placed
appellant on the periodic compensation rolls effective May 6, 2012.
Appellant returned to full-time, light-duty work from November 25 to December 16, 2013
and then took sick leave on December 17 and 18, 2013. She stopped work on December 19, 2013
and did not return. Appellant was removed from federal employment effective July 26, 2014 for
failure to meet a condition of employment and failure to maintain a regular schedule.
By decision dated January 14, 2014, the Board affirmed OWCP’s July 12, 2013 nonmerit
decision denying appellant’s request for an oral hearing and its March 28, 2013 merit decision
suspending her compensation benefits effective April 7, 2013 due to her failure to attend a
scheduled medical examination.
OWCP referred appellant to Dr. James Hood, a Board-certified orthopedic surgeon, for a
second opinion evaluation to determine the nature and extent of her accepted employment-related
condition. In a July 31, 2014 report, Dr. Hood reviewed a statement of accepted facts (SOAF), the
history of injury, and the medical evidence of record. He conducted a physical examination and
opined that appellant had a single soft tissue lumbar sprain without radiculopathy as a result of the
February 28, 2012 incident and that her condition had resolved within a three-month period of
time. Dr. Hood concluded that appellant had no disabling residuals related to her accepted
February 28, 2012 employment injury and had reached maximum medical improvement as of
May 28, 2012. He released her to full duty without restrictions.
On September 12, 2014 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period November 1, 2013 to November 1, 2014.
OWCP received work capacity evaluation forms (Form OWCP-5c) dated March 14, 2012
through June 21, 2017 from Dr. Johan Penninck, a Board-certified orthopedic surgeon, who
advised that appellant was totally disabled for work.

3
Docket No. 13-1869 (issued January 14, 2014) (the Board found that OWCP had properly denied appellant’s
request for an oral hearing and affirmed OWCP’s suspension of compensation benefits, pursuant to 5 U.S.C.
§ 8123(d), due to her failure to attend a medical examination).

2

By decision dated November 19, 2014, OWCP noted that appellant had previously been
compensated for the period November 1 to 24, 2013, as well as four hours on December 19, 2013,
four hours on January 20, 2014, four hours on February 24, 2014, four hours on March 28, 2014,
and four hours on May 5, 2014. It found that she was not entitled to compensation for the period
November 25 to December 18, 2013 because she was either working full time or on sick leave.
Since appellant had been removed from employment effective July 26, 2014,4 she was not entitled
to wage-loss compensation for the period July 26 to November 1, 2014. OWCP further found that
appellant had not met her burden of proof to establish the claimed disability for the remaining
hours for the period December 19, 2013 to July 26, 2014 because the medical evidence of record
did not establish a change in the nature or extent of her injury-related condition, or a change in the
nature and extent of her light-duty requirements as the reports of Dr. Penninck were insufficient
to establish disability from work.
On December 12, 2014 appellant timely requested an oral hearing before a representative
of OWCP’s Branch of Hearings and Review. A telephonic hearing was held before an OWCP
hearing representative on July 13, 2015.
By decision dated September 30, 2015, OWCP’s hearing representative affirmed the denial
of appellant’s wage-loss compensation claim finding that the medical evidence of record failed to
establish that she was totally disabled for the period December 19, 2013 to July 26, 2014, as it did
not establish a change in the nature or extent of appellant’s employment-related condition, or a
change in the nature and extent of her light-duty requirements. She also noted that appellant had
been paid total disability compensation for the period April 7 to July 7, 2013 based on her
attendance at a second opinion appointment on July 31, 2014.
On August 18, 2017 appellant requested reconsideration. In support of her request she
submitted an August 10, 2017 letter setting forth the basis of her request.
By decision dated November 16, 2017, OWCP denied appellant’s request for
reconsideration finding it was untimely filed and failed to demonstrate clear evidence of error.
Appellant subsequently submitted a January 9, 2018 prescription and medical report from
Dr. Penninck who reiterated his diagnosis of sprain of ligaments of lumbar spine and indicated that
appellant was not working, noting she was never able to get back to work.
On August 18, 2017 appellant requested reconsideration. She resubmitted her August 10,
2017 letter along with work capacity evaluation forms (Form OWCP-5c) dated January 9 and
April 18, 2018 from Dr. Penninck who continued to opine that she was totally disabled from work.
On April 27, 2018 appellant submitted another letter requesting reconsideration of her claim.
By decision dated June 28, 2018, OWCP denied appellant’s request for reconsideration
finding it was untimely filed and failed to demonstrate clear evidence of error. It found that
Dr. Penninck’s reports were insufficient to demonstrate that the September 30, 2015 decision was
erroneous.

4
The Board notes that OWCP incorrectly indicated appellant’s date of removal as July 22, 2014, instead of
July 26, 2014.

3

LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.5 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.6 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS).7 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.8
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.9 If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.11
OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have

5
5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
6

20 C.F.R. § 10.607(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

8
G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
9

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
10

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 7 at Chapter 2.1602.5 (February 2016).
11

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

4

created a conflict in medical opinion requiring further development, is not clear evidence of error.12
The Board makes an independent determination of whether a claimant has demonstrated clear
evidence of error on the part of OWCP.13
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations and procedures establish a one-year time limit for requesting
reconsideration, which begins on the date of the original OWCP merit decision.14 The most recent
merit decision was OWCP’s September 30, 2015 decision denying appellant’s claim for wage-loss
compensation. Appellant had one year from the date of that decision to make a timely request for
reconsideration. Since appellant’s request was not received by OWCP until August 18, 2017, it
was filed outside the one-year time period.15 As appellant’s August 18, 2017 request for
reconsideration was received more than one year after the September 30, 2015 merit decision, it
was untimely filed. Consequently, appellant must demonstrate clear evidence of error by OWCP
in the denial of her claim.16
In its September 30, 2015 decision, OWCP’s hearing representative affirmed the denial of
appellant’s wage-loss compensation claim finding that the medical evidence of record failed to
establish that she was totally disabled for the period December 19, 2013 to July 26, 2014, as it did
not establish a change in the nature or extent of appellant’s employment-related condition, or a
change in the nature and extent of her light-duty requirements.
In support of her untimely request for reconsideration, appellant resubmitted an August 10,
2017 letter setting forth the basis of her request. She subsequently submitted an April 27, 2018
letter again noting her request for reconsideration. Appellant submitted work capacity evaluation
forms (Form OWCP-5c) dated January 9 and April 18, 2018 from Dr. Penninck who continued to
opine that she was totally disabled for work in addition to a previously submitted January 9, 2018
prescription and medical report from Dr. Penninck who reiterated his diagnosis of sprain of
ligaments of lumbar spine and indicated that appellant was not working. The underlying issue is
medical in nature, namely whether the record of evidence supports the claimed period of disability.
The only new medical evidence are the various reports of Dr. Penninck which are substantially
similar or repetitive of his prior opinions already reviewed by OWCP. The Board has held that
repetitive or cumulative evidence is insufficient to shift the weight of the evidence in favor of the
claimant.17 The Board finds that none of the evidence submitted subsequent to the September 30,
2015 decision establishes that appellant was totally disabled for the claimed period. Therefore,
12

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 8 at Chapter 2.1602.5(a) (February 2016).

13

D.S., Docket No. 17-0407 (issued May 24, 2017).

14

Supra notes 6 and 7.

15

Supra note 6.

16

Id.; see also Debra McDavid, 57 ECAB 149 (2005).

17

P.B., Docket No. 18-0265 (issued September 5, 2018); D.E., 59 ECAB 438 (2008).

5

this evidence fails to demonstrate clear evidence of error because it does not establish that OWCP
committed an error in denying appellant’s wage-loss compensation claim, nor does it raise a
substantial question as to the correctness of OWCP’s decision.
As the evidence and argument submitted are of insufficient probative value to shift the
weight in favor of appellant and raise a substantial question as to the correctness of OWCP’s last
merit decision, appellant has failed to demonstrate clear evidence of error.18
CONCLUSION
The Board finds that OWCP properly determined appellant’s request for reconsideration
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 17, 2019
Washington, DC

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

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

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

18

See W.A., Docket No. 18-0297 (issued July 18, 2018).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
DEPARTMENT OF THE ARMY, TEST &
EVALUATION COMMAND, WHITE SANDS
MISSILE RANGE, NM, Employer
__________________________________________

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

Docket No. 15-0946
Issued: October 19, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 16, 2015 appellant filed a timely appeal from a January 8, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed a
pulmonary condition causally related to factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the January 8, 2015 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that four different military and civilian doctors concurred
that the constant exposure of mold, asbestos, and fungi in her work building caused her lung
disease.
FACTUAL HISTORY
On January 24, 2014 appellant, a 49-year-old information technology (IT) specialist, filed
an occupational disease claim (Form CA-2) alleging that she sustained a pulmonary condition
due to factors of her federal employment. She alleged that the air in her work building was
contaminated and that this caused her stress, breathing problems, and chest pain. Appellant
reported that she first became aware of her condition and attributed it to her federal employment
on December 17, 2013.
Appellant submitted a position description and a December 10, 2013 report from
Dr. Cesar Vivanco, a Board-certified oncologist, who reported that appellant suffered from
“severe respiratory problems contracted in White Sands Missile Range.” Dr. Vivanco noted that
appellant experienced a back injury at work that kept her away for several months and after she
returned to work, she developed several physical health problems. He opined that appellant’s
respiratory problems, constant headaches, upset stomach, chest pain, insomnia, uncontrolled high
blood pressure, low energy, and eating disorders were consequences of the high level of stress
she was having at work. Dr. Vivanco recommended she stop all stressful activities immediately
and indicated that if appellant’s symptoms continued to worsen he would have to consider
hospitalization.
In a February 11, 2014 letter, OWCP notified appellant of the deficiencies of her claim
and afforded her 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted narrative statements dated March 4 and June 26, 2014, an
environmental report of her work building, and photographs in support of her claim. She also
submitted a November 15, 2010 witness statement from her coworker, R.L., who indicated that
he noticed her breathing issues when she was required to have prolonged stays within the work
building and that she started feeling poorly with a shortness of breath and coughing.
By decision dated January 8, 2015, OWCP denied appellant’s claim finding that the
medical evidence she submitted failed to establish a causal relationship between her pulmonary
condition and factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that he or she is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury4 was sustained in the performance of duty. These
3

5 U.S.C. § 8101 et seq.

4

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

2

are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
developed a pulmonary condition causally related to factors of her federal employment.
Appellant identified the factors of employment that she believed caused her pulmonary
condition, specifically breathing in contaminated air at work, which OWCP accepted as factual.
However, in order to establish a claim that she sustained an employment-related injury, she must
also submit rationalized medical evidence which explains how her employment caused or
aggravated her medical condition.8
In his December 10, 2013 report, Dr. Vivanco noted that appellant suffered from “severe
respiratory problems contracted in White Sands Missile Range.” He opined that her respiratory
problems, constant headaches, upset stomach, chest pain, insomnia, uncontrolled high blood
pressure, low energy, and eating disorders were all consequences of the high level of stress she
was experiencing at work. Dr. Vivanco recommended that appellant stop all stressful activities
immediately and that if her symptoms worsened he would have to consider hospitalization. The
Board finds that Dr. Vivanco failed to provide a rationalized opinion to explain how the alleged
contaminated air caused or aggravated her pulmonary condition or any other condition.
Dr. Vivanco noted that appellant’s condition occurred while she was at work, but such
5

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

6

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

See O.W., supra note 5.

8

See A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C.
Moore, 52 ECAB 132 (2000).

3

generalized statements do not establish causal relationship because they merely repeat
appellant’s allegations and are unsupported by adequate medical rationale explaining how her
physical activity at work actually caused or aggravated the diagnosed conditions.9 The Board
has held that the mere fact that a condition manifests itself during a period of employment does
not raise an inference that there is a causal relationship between the two.10 Lacking thorough
medical rationale on the issue of causal relationship, the Board finds that Dr. Vivanco’s report is
insufficient to establish that appellant sustained an employment-related injury.
Appellant further submitted a position description, her own narrative statements, an
environmental report, photographs, and a witness statement from her coworker, R.L. These
documents are not medical evidence because they do not contain rationale by a physician relating
appellant’s disability to her employment.11 As such, the Board finds that appellant did not meet
her burden of proof with these submissions.
On appeal, appellant submitted new evidence and contends that four different military
and civilian doctors concurred that the constant exposure of mold, asbestos, and fungi in her
work building caused her lung disease. As noted,12 however, the Board is precluded from
reviewing evidence which was not before OWCP at the time it issued its final decision.13
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
developed a pulmonary condition causally related to factors of her federal employment.

9

See K.W., Docket No. 10-98 (issued September 10, 2010).

10

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

11

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).
12

Supra note 2.

13

See 20 C.F.R. § 501.2(c)(1).

4

ORDER
IT IS HEREBY ORDERED THAT the January 8, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
Chelsea, MA, Employer
__________________________________________

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

Docket No. 19-1604
Issued: October 9, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On July 22, 2019 appellant filed a timely appeal from a January 25, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP)1 and a February 21, 2019 nonmerit
decision. Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated October 5,
2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1604 (issued
October 5, 2020). The Board’s Rules of Procedure provide that an appeal in which a request for oral argument is
denied by the Board will proceed to a decision based on the case record and the pleadings submitted. 20 C.F.R.
§ 501.5(b).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 21, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation benefits, effective January 25, 2019, as his accepted March 4, 2004 bilateral knee
injuries had ceased without residuals; and (2) whether OWCP properly denied appellant’s request
for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 15, 2004 appellant, then a 27-year-old air marshal, filed a traumatic injury claim
(Form CA-1) alleging that he injured his knees when thrown to the ground during a ground fighting
training exercise while in the performance of duty. OWCP accepted the claim for a right medial
meniscal tear with lateral collateral ligament sprain and chondromalacia of the patella, and a left
knee contusion. On August 12, 2004 Dr. Mark J. Bulman, a Board-certified orthopedic surgeon,
performed authorized right knee arthroscopy with debridement of the lateral tibial plateau and
posterior horn of the lateral meniscus. He diagnosed a chondral flap injury of the lateral tibial
plateau and fraying of the posterior horn of the lateral meniscus.
Following intermittent work absences, appellant separated from the employing
establishment, effective December 21, 2004. On September 21, 2007 he returned to full-time
private sector work as a juvenile probation officer within prescribed medical limitations.
By decision dated November 29, 2007, OWCP found that appellant’s actual earnings of
$564.32 a week as a juvenile probation officer fairly and reasonably represented his wage-earning
capacity. It paid him compensation for loss of wage-earning capacity based on the difference
between his actual earnings and the current pay rate for his date-of injury position. Beginning
October 21, 2008, appellant worked in a series of private-sector security jobs in an office setting.
In a January 20, 2009 report, Dr. Anthony Lombardo, a Board-certified orthopedic
surgeon, noted appellant’s symptoms of right knee pain and the “locking up” of the left knee. He
diagnosed derangement of the right lateral meniscus, arthritis of the right lower leg, derangement
of the posterior horn of the left medial meniscus, and left knee pain. Dr. Lombardo restricted
appellant to light-duty work. He noted in a January 28, 2010 report that x-rays of both knees were
essentially normal. In a January 27, 2011 yearly follow up report, Dr. Lombardo found appellant’s
condition unchanged.5
On November 20, 2018 OWCP referred appellant for a second opinion examination, along
with a statement of accepted facts (SOAF), a set of questions, and the medical record to Dr. John
Hearst Wellborn, Jr., a Board-certified orthopedic surgeon, to determine whether appellant was

4

Docket No. 08-1973 (issued May 1, 2009).

5

Appellant also submitted a February 5, 2014 report by a physician whose signature is illegible, and a January 21,
2015 report from Martin Kramer, a physician assistant.

2

able to return to work as an air marshal and whether appellant continued to have residuals of his
accepted conditions.
In a December 11, 2018 report, Dr. Wellborn noted his review of the SOAF and medical
records. He diagnosed chronic derangement of the posterior horn of the lateral meniscus of the
right knee. Dr. Wellborn noted that OWCP had “not sent the operative report from 2004, but from
reviewing the SOAF [appellant] has been accepted to have a medial meniscus tear, but reviewing
the records he has report of having partial lateral meniscectomy done which would be objective
residual of injury at work.” He opined that he could not explain why appellant experienced chronic
postoperative right knee pain as imaging studies were normal and appellant did not have arthritis.
On December 20, 2018 OWCP notified appellant that it proposed to terminate his wageloss compensation as the weight of the medical evidence, as represented by the report of
Dr. Wellborn, established that appellant no longer had continued disability from work as a result
of his accepted employment injury. It afforded appellant 30 days to submit additional evidence or
argument if he disagreed with the proposed action.
Appellant subsequently submitted a January 6, 2019 letter by Dr. Bertrand Vandeville, a
Board-certified family practitioner, referring him to Dr. Piers Barry, a Board-certified orthopedic
surgeon, to evaluate appellant’s chronic right knee problem and to determine if appellant could
return to his date-of-injury position.
By decision dated January 25, 2019, OWCP terminated appellant’s wage-loss
compensation benefits, effective that day, finding that the report from Dr. Wellborn constituted
the weight of the medical evidence and established that he was capable of performing the physical
requirements of his date-of-injury position. OWCP noted that the claim remained open for medical
benefits.
On February 8, 2019 appellant requested reconsideration. He contended that Dr. Bulman
and Dr. Wellborn agreed that the accepted right knee condition was permanent.
In support of his request, appellant submitted a December 27, 2018 left knee x-ray report,
an attorney authorization, and copies of evidence previously of record.
By decision dated February 21, 2019, denied appellant’s request for reconsideration of the
merits of his claim.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.6 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

6

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

the employment injury.7 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective January 25, 2019.
OWCP accepted appellant’s claim for a right medial meniscal tear with lateral collateral
ligament sprain and chondromalacia of the patella, and a left knee contusion. It subsequently
terminated his wage-loss compensation based on the report of Dr. Wellborn, a second opinion
examiner.
Dr. Wellborn noted in his December 11, 2018 report, that he had not been provided a copy
of the 2004 operative report, and that he could not identify the etiology of appellant’s postoperative
right knee pain. The Board notes, however, that a complete, legible copy of Dr. Bulman’s
August 12, 2004 operative note was scanned into the imaged case record on June 17, 2004 and on
several subsequent dates.
Medical opinion evidence not based on a complete factual and medical history is of greatly
diminished probative value.9 Once it undertook development of the medical evidence, OWCP had
the responsibility to do so in a manner that would resolve the relevant issues in the case.10 As
such, it should have obtained a supplemental report based upon a complete and accurate medical
history.11 The Board finds that, as Dr. Wellborn’s medical opinion was not based upon the
complete medical record because he had not reviewed the 2004 operative report, his opinion is
insufficient to represent the weight of the medical evidence.12
As Dr. Wellborn’s report is of diminished probative value, the Board finds that OWCP has
not met its burden of proof to terminate appellant’s wage-loss compensation, effective
January 25, 2019.13

7

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
8

W.J., Docket No. 18-1376 (issued March 27, 2019); M.C., Docket No. 18-1374 (issued April 23, 2019); Del K.
Rykert, 40 ECAB 284, 295-96 (1988).
9
R.D., Docket No. 17-0415 (issued April 13, 2018); Victor J. Woodhams, 41 ECAB 345 (1989); Leonard J.
O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based on incomplete history have little
probative value).
10

Id.

11

W.J., supra note 8; Del K. Rykert, supra note 8.

12

See W.J., supra note 8; see also R.D., supra note 9.

13

In light of the Board’s disposition of issue one, issue two is rendered moot.

4

CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective January 25, 2019.
ORDER
IT IS HEREBY ORDERED THAT the February 21 and January 25, 2019 decisions of
the Office of Workers’ Compensation Programs are reversed.
Issued: October 9, 2020
Washington, DC

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

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

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

5