United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, South Burlington, VT,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Alan D. Overton, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-384
Issued: June 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 13, 2011 appellant, through her attorney, filed a timely appeal from the
June 16, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for merit review. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit
decision. Because more than 180 days elapsed from the last merit decision of OWCP dated
March 19, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for review of the merits
of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 8, 2009 appellant, then a 60-year-old transportation security officer, filed an
occupational disease claim (Form CA-2) alleging injury to her lower back, including lateral
lumbar stenosis, due to the repetitive physical requirements associated with her job. She first
became aware of her claimed condition in March 2008 and its relationship to her work in
January 2009. Appellant asserted that her injury was caused by lifting and carrying bags
weighing up to 80 pounds and engaging in twisting, turning and bending. She began working a
light-duty position which limited her lifting to 25 pounds.
Appellant submitted an April 24, 2009 report in which Dr. Mary T. Flimlin, Boardcertified in physical medicine and rehabilitation, diagnosed mild lateral lumbar stenosis.
Dr. Flimlin recommended that appellant work in a light-duty position.
In a May 22, 2009 letter, appellant was apprised by OWCP of the deficiencies in her
claim and the need to arrange for the submission of additional medical and factual evidence to
include a narrative report from her physician that contained a detailed history of her condition,
diagnosis based on results of examination and testing and the physician’s reasoned medical
opinion on the cause of her condition and how her employment contributed to the condition
found. OWCP provided her 30 days from the date of the letter to submit such evidence.
In a March 16, 2009 report, Dr. Flimlin stated that appellant had low back pain caused by
spondylolisthesis at L5-S1 with degenerative disc disease and facet arthritis.
By decision dated July 24, 2009, OWCP denied appellant’s claim on the grounds that she
failed to submit evidence sufficient to establish a causal connection between her back condition
and factors of her federal employment.
Appellant filed a request for reconsideration on August 14, 2009. She submitted
diagnostic testing from January and February 2009. In a November 5, 2009 decision, OWCP
affirmed its July 24, 2009 decision on the grounds that the medical evidence submitted in support
of appellant’s reconsideration request failed to address causal relationship to work.
On January 19, 2010 appellant, through her counsel, requested reconsideration of
OWCP’s November 5, 2009 decision. She submitted the March 16 and August 7, 2009 reports
from Dr. Flimlin and treatment notes dated between August 2008 and September 2009 from
Dr. Tania F. Bertsch, an attending Board-certified internist.
On March 16, 2009 Dr. Flimlin related appellant’s low back pain to spondylolisthesis at
L5-S1 in combination with degenerative disc disease and facet arthritis at that level. She
reported that appellant noted improvement in her back pain following placement in a modified
job with a 25-pound lifting restriction.
On August 7, 2009 Dr. Flimlin noted that appellant presented with a history of having
experienced an acute flare of back pain related to lifting at work. She diagnosed
spondylolisthesis at L5-S1 in combination with degenerative disc disease and facet arthritis and
opined that repetitive lifting at work caused an acute exacerbation of pain related to these

2

conditions. Dr. Flimlin indicated that appellant was placed on modified work with a 25-pound
lifting restriction and noted that she had remained free of pain since this work was implemented.
On August 18, 2009 Dr. Bertsch diagnosed “mechanical back pain exacerbated by heavy
lifting at work.” She reported that appellant lifted bags at work which weighed between 50 and
60 pounds and made note of appellant’s observation that her back pain improved once her lifting
activity was limited.
In a March 19, 2010 decision, OWCP denied appellant’s claim on the grounds that she
did not submit sufficient medical evidence to establish that her back condition arose in the
performance of duty. It noted that her physicians did not clearly describe her work duties as
causing or aggravating a specific, diagnosed back condition.
In a March 18, 2011 letter, appellant, through counsel, requested reconsideration of
OWCP’s March 19, 2010 decision denying the claimed work-related condition. Counsel
indicated that he was submitting a March 4, 2011 report of Dr. Flimlin. He provided brief
excerpts from the report which he believed supported appellant’s claim that she sustained a
work-related occupational disease, but no new medical report of Dr. Flimlin was submitted in
connection with appellant’s reconsideration request. In the March 18, 2011 letter, counsel
further argued that OWCP’s conclusions in its March 19, 2010 decision were not valid given the
substance of Dr. Flimlin’s August 7, 2009 and March 4, 2011 reports.
In a June 16, 2011 decision, OWCP denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a). It noted that counsel provided excerpts from
a referenced March 4, 2011 report of Dr. Flimlin, but he did not submit a copy of the report.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file her application
for review within one year of the date of that decision.4
When a claimant fails to meet one of the above standards, OWCP will deny the
application for reconsideration without reopening the case for review on the merits.5 The Board
has held that the submission of evidence or argument which repeats or duplicates evidence or
2

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

3

argument already in the case record6 and the submission of evidence or argument which does not
address the particular issue involved does not constitute a basis for reopening a case.7 While a
reopening of a case may be predicated solely on a legal premise not previously considered, such
reopening is not required where the legal contention does not have a reasonable color of
validity.8
ANALYSIS
OWCP issued a decision on March 19, 2010 denying appellant’s claim for a work-related
occupational disease which she believed was due to her repetitive work duties, including
engaging in repetitive lifting, twisting, turning and bending. It found that she did not submit
sufficient medical evidence in support of her claim. Appellant, through counsel, requested
reconsideration of this decision on March 18, 2010.
The Board does not have jurisdiction over the March 19, 2010 OWCP decision. The
issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In her
application for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. She did not identify a specific point of law or show that it
was erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument. She indicated that she was submitting a March 4, 2011 report of Dr. Flimlin, an
attending Board-certified physical medicine and rehabilitation physician, which she believed
supported her claim that she sustained a work-related occupational disease. However, this report
was not, in fact, submitted in connection with the reconsideration claim. The underlying issue in
this case is whether appellant sustained a work-related injury due to her repetitive work duties
overtime. That is a medical issue which must be addressed by relevant medical evidence.9 A
claimant may be entitled to a merit review by submitting new and relevant evidence, but
appellant did not submit any new and relevant medical evidence in this case.10 Appellant further
argued that OWCP’s conclusions in its March 19, 2010 decision were not valid given the
substance of Dr. Flimlin’s August 7, 2009 and March 4, 2011 reports. However, OWCP had
previously considered Dr. Flimlin’s August 7, 2009 report and, as noted, a March 4, 2011 report
was not submitted.11
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
6

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

7

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

8

John F. Critz, 44 ECAB 788, 794 (1993).

9

See Bobbie F. Cowart, 55 ECAB 746 (2004).

10

Appellant provided brief excerpts from the referenced March 4, 2011 report, but these would not constitute
probative evidence in the absence of the submission of the actual report.
11

Appellant submitted additional evidence after OWCP’s March 19, 2010 decision, but the Board cannot consider
such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

4

specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. IMMIGRATION & CUSTOMS
ENFORCEMENT, Rouses Point, NY, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 20-1632
Issued: July 23, 2021

Case Submitted on the Record

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

On September 16, 2020 appellant through counsel, filed a timely appeal from an
August 13, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards assigned Docket No. 20-1632.
In a letter dated and received July 1, 2021, counsel requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that counsel’s request for the
dismissal of the appeal should be granted. Accordingly,

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.

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 20-1632 is dismissed.
Issued: July 23, 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

2


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

)
)
)
)
)
)
)
)

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

Docket No. 12-1798
Issued: February 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 29, 2012 appellant, through her attorney, timely appealed the May 23, 2012
merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied a
schedule award. 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 the schedule award claim.2
ISSUE
The issue is whether appellant has a ratable impairment of the lower extremities
attributable to his employment-related lumbar condition.

1
2

5 U.S.C. § 8101 et seq.

The record includes evidence received after OWCP issued its May 23, 2012 final decision. As this evidence
was not part of the record when OWCP issued its May 23, 2012 decision, the Board is precluded from considering it
for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
This case was previously before the Board.3 Appellant, a 57-year-old former rural
carrier, injured her lower back in a July 6, 2006 employment-related motor vehicle accident.4
OWCP accepted her traumatic injury claim for lumbar radiculitis and lumbar intervertebral disc
displacement without myelopathy. On July 16, 2008 appellant filed a claim for a schedule
award. When the case was last on appeal, OWCP had denied her schedule award claim based on
the January 28, 2010 report of Dr. Donald M. Mauldin, a Board-certified orthopedic surgeon and
impartial medical examiner (IME),5 who found that appellant reached maximum medical
improvement but had no impairment of the lower extremities causally related to her July 6, 2006
employment injury.
By order dated March 22, 2011, the Board set aside OWCP’s February 17, 2010 decision
and remanded the case for the district medical adviser to review Dr. Mauldin’s January 28, 2010
findings.6
On remand, Dr. Michael M. Katz, a district medical adviser, reviewed the case record. In
a report dated April 5, 2011, he found zero percent impairment of both lower extremities.
Dr. Katz noted that Dr. Mauldin found no ratable impairment of either lower extremity on the
basis of spinal nerve impairment.
By decision dated April 19, 2011, OWCP denied appellant’s claim for a schedule award.
On February 20, 2012 appellant’s counsel requested reconsideration. He claimed not to
have received the April 19, 2011 decision. In the interim, OWCP received various treatment
records regarding appellant’s ongoing cervical and lumbar complaints.7 No additional
impairment rating was submitted with the latest request for reconsideration.
By decision dated May 23, 2012, OWCP reviewed the schedule award on the merits and
denied modification of the April 19, 2011 determination.

3

Docket No. 10-1104 (issued March 22, 2011).

4

Appellant resigned from her rural carrier position effective September 10, 2007.

5

OWCP declared a conflict in medical opinion between appellant’s physician, Dr. John W. Ellis, a Boardcertified family practitioner, and Dr. Christopher E. Cenac Sr., a Board-certified orthopedic surgeon and OWCP
referral physician, who examined appellant on November 20, 2008 and found no lower extremity impairment. In an
August 6, 2009 report, Dr. Ellis found 17 percent impairment of the left lower extremity due to peripheral nerve
impairments involving the L3, L5 and S1 nerve roots.
6

The Board’s March 22, 2011 order remanding case is incorporated herein by reference.

7

The treatment records covered the period of May 2, 2011 through March 30, 2012. OWCP also received lumbar
and cervical magnetic resonance imaging (MRI) scans dated November 14, 2011. Appellant also underwent lumbar
medial branch blocks on January 17, 2012 and fluoroscopic-guided radiofrequency denervation on March 30, 2012.

2

LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.8 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) as the appropriate standard for
evaluating schedule losses.9 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).10
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or the implementing regulations.11 Neither FECA nor the regulations provide
for the payment of a schedule award for the permanent loss of use of the back/spine or the body
as a whole.12 However, a schedule award is permissible where the employment-related back
condition affects the upper and/or lower extremities.13
The sixth edition of the A.M.A., Guides (2008) provides a specific methodology for
rating spinal nerve extremity impairment.14 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the
spine.15 FECA-approved methodology is premised on evidence of radiculopathy affecting the
upper and/or lower extremities.16
FECA provides that, if there is disagreement between an OWCP-designated physician
and the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.17 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually

8

For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C.
§ 8107(c)(2).
9

20 C.F.R. § 10.404.

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
11

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

12

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, supra note 10 at Chapter 2.808.6a(3).

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, supra note 10 at Chapter 3.700, Exhibit 4.

15

Id.

16

Id.

17

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

3

equal weight and rationale.”18 Where OWCP has referred the case to an IME to resolve a
conflict in the medical evidence, the opinion of such a specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.19
ANALYSIS
OWCP declared a conflict in medical opinion based on the reports of Dr. Ellis and
Dr. Cenac. Dr. Ellis found 17 percent left lower extremity impairment under the A.M.A., Guides
(6th ed. 2008). Dr. Cenac found no lower extremity impairment. In light of this conflict, OWCP
properly referred the claim to Dr. Mauldin, selected as the IME.
Dr. Mauldin examined appellant on January 28, 2010 and found that her complaints were
primarily subjective in nature. He also noted that her restricted range of motion was voluntary.
There were no objective findings on clinical examination. Appellant’s lower extremity strength
was intact with no evidence of atrophy. Dr. Mauldin also noted no joint ankylosis and no gross
motor or sensory deficits. He stated that appellant’s MRI scan did not reveal significant nerve
root compression. Dr. Mauldin explained that rating any type of radicular component was
inappropriate because there was no clear-cut documentation that she had significant
radiculopathy related to her employment injury. With no documentation of radiculopathy and no
documentation of motor or sensory deficits specific to the lower extremities, appellant did not
have any impairment associated with her July 6, 2006 injury.
Following the prior appeal to the Board on remand Dr. Katz reviewed Dr. Mauldin’s
January 28, 2010 report. He found that appellant had no lower extremity impairment under the
A.M.A., Guides (6th ed. 2008).
When a case is referred to an IME to resolve a conflict, the resulting medical opinion, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.20 The Board finds that Dr. Mauldin’s January 28, 2010 opinion constitutes the special
weight of medical evidence. Dr. Mauldin provided a well-reasoned report based on a proper
factual and medical history. He accurately summarized the relevant medical evidence and relied
on the statement of accepted facts. Dr. Mauldin also examined appellant and provided a
thorough review of her relevant medical records. His report included detailed findings and
medical rationale supporting his opinion. As the impartial specialist, Dr. Mauldin’s opinion was
entitled to determinative weight.21 Accordingly, the Board finds that OWCP properly relied on
the IME’s January 28, 2010 impairment determination. It is not established that appellant has
any lower extremity impairment due to her employment-related lumbar condition. While OWCP
subsequently received additional treatment records and diagnostic studies, this evidence did not
clearly establish the presence of any lower extremity impairment attributable to her July 6, 2006
employment injury.
18

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

19

Gary R. Sieber, 46 ECAB 215, 225 (1994).

20

Id.

21

Id.

4

CONCLUSION
Appellant failed to establish that she has a ratable impairment of the lower extremities
due to her employment-related lumbar condition.22
ORDER
IT IS HEREBY ORDERED THAT the May 23, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 20, 2013
Washington, DC

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

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

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

22

Appellant may request a schedule award or increased schedule award based on evidence of a new exposure or
medical evidence showing progression of an employment-related condition resulting in permanent impairment or
increased impairment.

5


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

)
)
)
)
)
)
)
)

Appearances:
Guillermo Mojarro, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0243
Issued: June 20, 2017

Case Submitted on the Record

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

JURISDICTION
On November 14, 2016 appellant, through his representative, filed a timely appeal from a
June 28, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days elapsed from the last merit decision, dated July 9, 2015, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3 the Board lacks jurisdiction over the merits of the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issues is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claims under 5 U.S.C. § 8128.
FACTUAL HISTORY
On May 17, 2001 appellant, then a 47-year-old maintenance mechanic, filed a traumatic
injury claim (Form CA-1) alleging that, on May 16, 2001, while standing on a flatbed truck
helping guide a flat sorter onto the truck, he slipped on an oil spot and fell and broke his right hip
and right wrist. OWCP accepted his claim for comminuted fracture of the right intertrochanteric
region and subtrochanteric area of the right femoral shaft (hip), nondisplaced fracture of the right
distal radius, and nondisplaced fracture of the tibial spine and lateral tibial plateau.3 It
subsequently expanded the claim to include depressive disorder and internal derangement of the
right knee. Appellant stopped work on May 16, 2001 and returned to a full-time limited-duty job
on May 2, 2005.4
On October 17, 2008 appellant filed a notice of recurrence of disability claim (Form CA2a) alleging that on May 16, 2008 he experienced a recurrence of symptoms from the original
accident and on May 15, 2008 his physician ordered him to stop work. He indicated that after
returning to work following the original injury he worked in a limited-duty position.
In a decision dated March 11, 2009, OWCP denied appellant’s claim for a recurrence of
disability. Appellant requested an oral hearing which was held before an OWCP hearing
representative on July 24, 2009. In a decision dated October 21, 2009, an OWCP hearing
representative affirmed the March 11, 2009 decision.
On June 24, 2013 appellant filed a claim for compensation (Form CA-7) for total
disability for the period October 9, 2009 to January 31, 2013. He submitted a February 7, 2014
operative report from Dr. Stephen Barkow, a Board-certified anesthesiologist, who performed a
right L4 and right L5 transforaminal epidural steroid injection and diagnosed lumbar
degenerative disc disease, lumbar radiculopathy, and postlaminectomy syndrome.

3

OWCP authorized the following procedures: on May 17, 2001 appellant underwent an open reduction and
internal fixation of fracture of the intertrochanteric area and subtrochanteric area of the right femoral shaft and was
diagnosed with comminuted fracture, intratrochanteric region and subtrochanteric area of the left femoral shaft,
nondisplaced fracture of the distal right radius and fracture of the base of the tibial spine and lateral tibial plateau,
nondisplaced; on February 20, 2003 appellant underwent removal of gamma nail and was diagnosed with status post
placement of right femoral gamma nail; on December 26, 2001 appellant underwent removal of distal interlocking
screw right knee surgery, lateral arthrotomy and was diagnosed with right distal femur painful retained hardware,
interlocking screw from intramuscular nail; and on April 6, 2004 appellant underwent an anterior lumbar
decompression, partial corpectomy, and fusion and was diagnosed with disc protrusion, discogenic pain, and disc
collapse L5-S1.
4

Appellant retired on January 31, 2013.

2

By decision dated February 28, 2014, OWCP denied appellant’s claim for compensation
for the period October 9, 2009 to January 31, 2013.5
On January 31, 2014 appellant requested reconsideration of the March 11, 2009 denial of
his recurrence claim. By decision dated May 1, 2014, OWCP denied his request for
reconsideration of the October 21, 2009 decision as it was untimely filed and failed to
demonstrate clear evidence of error.
In an appeal request form dated March 10, 2014, appellant disagreed with the
February 28, 2014 OWCP decision and requested an oral hearing. The hearing was held on
October 17, 2014. Appellant testified that he attempted to return to work from May 15, 2008 to
January 2013 and was informed by the employing establishment that his job was terminated and
that there was no present assignment for him. He asserted that the employing establishment
withdrew his limited-duty job.
Appellant was treated by Dr. John B. Dorsey, a Board-certified orthopedist, from June 17
to December 16, 2014. In State of California, Division of Workers’ Compensation, primary
treating physician’s progress reports dated June 17, July 15, October 28, and December 16, 2014,
Dr. Dorsey diagnosed right hip arthritis, lumbar disc displacement, and internal derangement of
the knee. He indicated that appellant was status post steroid injections on February 7, 2014 and
reported significant improvement in pain. Dr. Dorsey noted objective findings of right hip pain
and tenderness of the lumbar spine. He prescribed Tramadol for pain and noted that appellant
was to remain off work until January 6, 2015.
Appellant was treated by Dr. Samuel H. Albert, a Board-certified psychiatrist, from
March 7 to June 13, 2014. His diagnoses included depressive disorder and psychosocial
stressors with severe occupational and social difficulties. Dr. Albert noted that appellant was not
capable of performing his usual and customary job, or any other job, due to his employmentrelated conditions. He indicated that appellant’s emotional reactions to his assigned tasks were
the direct cause of his medical conditions and he did not possess the mental capacity to work
within job situations or at other gainful employment. Dr. Albert noted a definite relationship in
time and sequence of the events that occurred while appellant was performing his assigned duties
at the employing establishment and the onset of the symptoms of his current diagnoses. He
found that appellant’s current symptoms and diagnosed conditions were causally related to his
employment.
Dr. Albert provided behavioral and cognitive psychotherapy, supportive
psychotherapy, and medications. He indicated that when discussing the concept of a return to
the work situation and a visit to the former site of employment appellant became extremely
agitated. Dr. Albert noted no improvement in appellant’s psychiatric symptoms and he
continued to be significantly depressed. He opined that appellant’s job-related accepted
conditions were the cause of his total disability.
In a decision dated January 2, 2015, OWCP’s hearing representative affirmed the
February 28, 2014 decision denying appellant’s recurrence claim for the period October 9, 2009
to January 31, 2013. The hearing representative found that the evidence of record did not
5

OWCP subsequently developed this claim as one for a recurrence of disability. It noted that appellant had not
worked since May 16, 2008.

3

support the withdrawal of the restricted-duty position by management. Rather, the evidence
indicated that Dr. Albert removed appellant from his restricted-duty position.
On April 10, 2015 appellant requested reconsideration of the May 1, 2014 decision. He
submitted both an appeal request form and a one-page letter noting the request. On April 23,
2015 OWCP denied this request for reconsideration finding that it was untimely filed and failed
to demonstrate clear evidence of error.
Also on April 10, 2015 appellant requested reconsideration of the January 2, 2015
decision. He submitted both an appeal request form and a one-page letter noting the request.
Appellant submitted treating physician’s progress reports from Dr. Dorsey dated
January 6, March 24, and April 21, 2015, who diagnosed intertrochanteric closed fracture,
subtrochanteric closed fracture, and closed fracture of the upper end of the tibia. He noted
subjective complaints of low back, right hip, right knee and right wrist pain and objective
findings of right hip pain and tenderness of the lumbar spine. Dr. Dorsey advised that appellant
was off work until February 3, 2015. In progress notes dated January 6 to February 24, 2015, he
indicated that appellant presented with low back, right knee, and right wrist pain, but reported
significant relief with a new medication.
Appellant was treated by Dr. Albert on October 28, 2013 and August 22 and
October 22, 2014. Dr. Albert noted diagnoses and opined that appellant was incapable of
performing any job, with or without restrictions, due to his work-related conditions. He
indicated that appellant continued to exhibit symptoms of the accepted conditions and was totally
temporary disabled. Dr. Albert noted a definite relationship in time and in sequence with respect
to the events that occurred while appellant was performing assigned duties at the employing
establishment and the onset of the symptoms of his current diagnoses. He found causal
relationship between appellant’s work conditions and his current symptoms and total disability.
In a decision dated July 9, 2015, OWCP denied modification of the January 2, 2015
hearing representative’s decision.
In a letter dated March 30, 2016, appellant requested reconsideration of the July 9, 2015
decision. He asserted that OWCP committed an error of law when it failed to consider new
evidence submitted on April 10, 2015 prior to issuing its decision.
In a primary treating physician’s progress reports dated July 14 to October 20, 2015,
Dr. Dorsey noted appellant’s subjective complaints of right knee pain and right hip pain. He
noted objective findings of an antalgic gait and that the right leg was 1 and 5/8 inches shorter
than the left leg. Dr. Dorsey diagnosed introchanteric closed fracture, subtrochanteric closed
fracture and closed fracture of the upper end of the tibia. He noted that appellant declined
arthroplasty surgery.
Dr. Dorsey advised that appellant was to stay off work until
November 20, 2015. In primary treating physician’s progress reports dated November 17 and
December 15, 2015 and January 12, February 16, March 22, and April 19, 2016, Dr. Dorsey
noted appellant’s subjective complaints of right knee pain, pain with increased walking and
standing over 15 minutes, lumbar spine pain increased with activities of daily living, right hip
pain, his right leg was 1 and 5/8 inches shorter than the left leg and he wore orthopedic shoes

4

with a lift. He noted objective findings of equal and symmetric deep tendon reflexes and he
ambulated with an irregular gait. Dr. Dorsey diagnosed nondisplaced bicondylar fracture of the
right tibia, nondisplaced subtrochanteric fracture of unspecified femur, intervertebral disc
displacement of the lumbar region, and major depressive disorder, single episode. He noted a
treatment plan of orthopedic shoes, continue medications as directed, and remain off work until
May 18, 2016. Other progress notes from Dr. Dorsey dated April 15 to May 17, 2016 indicated
that appellant continued to have back and hip pain.
Appellant was treated by Dr. Albert on November 14, 2014 and January 23, July 24,
August 21, September 18, and October 2, 2015, and he noted diagnoses and advised that
appellant was not capable of participating in vocational rehabilitation training as he did not have
the mental capacity to learn or retain new information. Dr. Albert advised that appellant was
totally disabled from all work with or without restrictions. He indicated that appellant continued
to exhibit symptoms of the accepted conditions which were medically present and disabling.
Dr. Albert noted that appellant continued to be totally disabled as a consequential result of the
accepted conditions which are due to work-related events.
In a June 28, 2016 decision, OWCP denied appellant’s March 30, 2016 request for
reconsideration as the evidence submitted was insufficient to warrant merit review as the
submitted evidence was either duplicative or cumulative in nature.
LEGAL PRECEDENT
Under section 8128(a) of FECA,6 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(3) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence which:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”7
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.8

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(b).

5

ANALYSIS
OWCP denied appellant’s claim for a recurrence of disability for the period October 9,
2009 to January 31, 2013 because the evidence of record failed to establish that his disability was
causally related to the accepted May 16, 2001 work-related injury. Thereafter, it denied
appellant’s reconsideration request without conducting a merit review.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for further review of the merits of the
claim. The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law. In his March 30, 2016 reconsideration request, appellant
indicated that he submitted new evidence on April 10, 2015, but OWCP failed to consider this
evidence prior to issuing a decision on his claim. He asserted that this was an error of law.
These assertions, however, do not show a legal error by OWCP or a new and relevant legal
argument. The underlying issue in this case is whether appellant submitted medical evidence
establishing that he sustained a recurrence of his medical condition causally related to the
May 16, 2001 work incident. That is a medical issue which must be addressed by relevant new
medical evidence.9
Appellant did not submit any pertinent new and relevant medical evidence in support of
his claim. He submitted reports from Dr. Albert dated November 14, 2014 and January 23,
July 24, August 21, September 18, and October 2, 2015 in which he diagnosed depressive
disorder, severe occupational and social difficulties, and opined that appellant was unable to
work at his usual and customary job. Dr. Albert opined that appellant was incapable of
participating in vocational rehabilitation training, as he did not have the mental capacity to learn
or retain new information and that he was totally disabled from work. He indicated that
appellant continued to exhibit symptoms of the accepted conditions and continued to be totally
disabled as a result of the work-related events. However, these reports are irrelevant because
they do not specifically address the issue of whether appellant sustained a recurrence of disability
for the period October 9, 2009 to January 31, 2013 causally related to his May 16, 2001 accepted
work injury. Additionally, these reports are similar to Dr. Albert’s prior reports already
contained in the record, specifically reports dated March 7, May 16, June 13, August 22, and
October 22, 2014,10 and which were previously considered by OWCP in its decisions dated
January 2 and July 9, 2015 and found deficient. Therefore, this new evidence is insufficient to
warrant reopening the case for a merit review.
Similarly, appellant submitted primary treating physician’s progress reports dated July 14
to October 20, 2015 from Dr. Dorsey who noted appellant’s subjective complaints and objective
findings and diagnosed introchanteric closed fracture, subtrochanteric closed fracture, and closed
fracture of the upper end of the tibia. Dr. Dorsey advised that appellant was to remain off work
9

See Bobbie F. Cowart, 55 ECAB 746 (2004). Furthermore, the Board notes that the only evidence of record
dated or received by OWCP on April 10, 2015 are appellant’s reconsideration requests noted infra.
10

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).

6

until November 20, 2015. In primary treating physician’s progress reports dated November 17,
2015 to April 19, 2016 he diagnosed displaced bicondylar fracture of the right tibia,
nondisplaced subtrochanteric fracture of unspecified femur, intervertebral disc displacement of
the lumbar region and major depressive disorder, single episode. Dr. Dorsey noted a treatment
plan of orthopedic shoes, continue medications as directed, and remain off work until
May 18, 2016. However, these reports are irrelevant as they are similar to his previously
submitted reports dated June 17, 2014 to April 21, 2015, which were considered by OWCP in its
decisions dated January 2 and July 9, 2015. Evidence that repeats or duplicates evidence already
in the case record has no evidentiary value and does not constitute a basis for reopening a case.11
Therefore, these reports are insufficient to require OWCP to reopen the claim for a merit review.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, appellant asserts that he established that he sustained a recurrence of disability
as the employing establishment did not have any work available for him to perform within his
restrictions during the recurrence period. He contends that OWCP should have paid him
compensation benefits during this period that his employing establishment did not have work
available for him to perform. As explained, the Board does not have jurisdiction over the merits
of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

11

See Daniel Deparini, id.

7

ORDER
IT IS HEREBY ORDERED THAT the June 28, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
ELECTRONICS SYSTEM COMMUNICATION,
Charleston, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-544
Issued: November 22, 2011

Case Submitted on the Record

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

JURISDICTION
On December 28, 2010 appellant, through her attorney, filed a timely appeal from a
December 22, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
concerning the denial of her request for expansion of her claim. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to accept her claim for additional
conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a decision dated September 25, 2009,
the Board affirmed an OWCP hearing representative’s August 14, 2008 decision, that denied
appellant’s claim of vocal chord dysfunction, shortness of breath, allergic rhinitis/hay fever,
persistent cough, reactive dysfunction syndrome, sleep apnea with hypersomia and
gastroesophageal reflux disease.2 The Board also affirmed an October 15, 2008 OWCP decision
denying authorization of a polysomnography test. In a decision of August 11, 2010, the Board
reversed a May 20, 2009 hearing representative’s decision terminating appellant’s medical
benefits. The Board found that OWCP failed to establish that she had no residuals of her
accepted dysphagia and chronic pharyngitis. The history of the case as provided in the Board’s
prior decisions is incorporated by reference.3
On September 20, 2010 appellant requested reconsideration of OWCP’s denial to expand
her claim and requested acceptance of consequential injuries of stress and depression. She
submitted a January 18, 2000 copy of a material safety data sheet.
Appellant submitted a June 8, 2009 report by Dr. Michael A. Spandorfer, Board-certified
in pulmonary medicine, internal medicine and critical care medicine, who provided physical
findings which revealed moderate restriction and reported a history of employment-induced
asthma/reactive airway dysfunction syndrome. The diagnoses included occupationally-induced
reactive airway dysfunction syndrome/asthma with acute exacerbation, occupationally-induced
allergic rhinitis, gastroesophageal reflux disease, lower extremity edema, high blood pressure
and obstructive sleep apnea.
In an October 9, 2009 report, Dr. John T. Ramey, a Board-certified allergist and internist,
noted that he had treated appellant for occupationally-induced asthma and related symptoms of
cough and shortness of breath since May 23, 2006. He attributed these conditions to exposure to
paint fumes at work on January 5, 2004, February and December 2005. Dr. Ramey concluded
that appellant’s exposure to the paint fumes more likely than not was the cause of her
occupationally-induced asthma.
On November 13, 2009 Dr. Ramey diagnosed vocal cord dysfunction, reactive airways
dysfunction syndrome and gastroesophageal reflux disease. He concluded that appellant was
totally disabled due to these conditions.

2

Docket Nos. 08-2377 & 09-196 (issued September 25, 2009).

3

On December 1, 2005 appellant, then a 47-year-old computer technician, filed a traumatic injury claim alleging
that on that date she had an allergic reaction to smelling paint fumes. OWCP accepted the claim for dysphagia and
chronic pharyngitis, which was subsequently expanded to include chronic obstructive asthma. Appellant stopped
work on December 1, 2005 and was placed on the periodic rolls for temporary total disability. On December 31,
2007 OWCP combined claim numbers xxxxxx657 and xxxxxx168 with claim number xxxxxx122, the claim number
currently on appeal. Under claim number xxxxxx657 appellant alleged that on July 14, 2004 she had an allergic
reaction to smelling paint fumes. She, under claim number xxxxxx168, alleged that on February 28, 2005 she had
an allergic reaction to smelling paint fumes. In a November 21, 2007 memorandum, OWCP noted that claim
numbers xxxxxx657 and xxxxxx168 had been administratively closed with no accepted condition.

2

In a March 23, 2010 report, Dr. Spandorfer provided physical findings and reported a
history of employment-induced asthma/reactive airway dysfunction syndrome. A spirometry test
revealed moderate restrictive impairment.
Appellant submitted reports from Dr. Lucinda Halstead, a treating Board-certified
otolaryngolist, dated May 21, 2006 through October 1, 2009. Dr. Halstead listed physical
findings and the treatment provided for appellant’s voice problems.
She diagnosed
laryngospasm, cough, voice problems, allergies, gastroesophageal reflux disease, hoarseness and
right true vocal fold varix. In a September 21, 2006 report, Dr. Halstead related that appellant
has had problems with reactive airway disease, asthma, shortness of breath, hoarseness and chest
tightness since her December 1, 2005 exposure to paint.
In reports dated May 26, August 16 and October 7, 2010, Dr. Spandorfer noted physical
findings and reported a history of employment induced asthma/reactive airway dysfunction
syndrome. A review of a spirometry test in the May 26, 2010 report revealed severe restriction.
In August 16 and October 7, 2010 reports, Dr. Spandorfer related that review of a spirometry test
revealed severe restriction with possible deterioration seen when compared to the prior test. He
diagnosed occupationally-induced reactive airway dysfunction syndrome/asthma with acute
exacerbation, allergic rhinitis, gastroesophageal reflux disease and obstructive sleep apnea.
In a September 23, 2010 letter, Brian Otero, a physician specialty accounts coordinator,
requested that the diagnoses of achalasia and cariospasm, cough, unspecified asthma with acute
exacerbation and asthma be accepted. He related that Dr. Spandorfer provided treatment for
these conditions which were a direct result of appellant’s employment injury.
On December 13, 2010 OWCP received a June 17, 2010 report from Dr. Spandorfer, who
found that appellant was totally disabled and developed additional conditions. Dr. Spandorfer
attributed her significant cough, shortness of breath, dysphonia, sinusitis, dysphagia and severe
lung restriction to her paint exposure.
On December 20, 2010 OWCP received reports dated October 28 and November 29,
2010 report from Dr. Spandorfer, who reviewed a spirometry test which revealed moderate
restriction and that the study was limited as a result of appellant’s effort and reproducibility. A
review of a spirometry test on November 9, 2010 revealed severe restrictive impairment, which
was limited as a result of her effort and reproducibility.
Dr. Spandorfer diagnosed
occupationally-induced asthma and reactive airway dysfunction syndrome with acute
exacerbation, allergic rhinitis, hoarseness, thrush, gastroesophageal reflux disease and
obstructive sleep apnea.
By decision dated December 22, 2010, OWCP denied modification of the prior
decisions.4 It found that the medical evidence contained insufficient rationale to establish the
causal relationship between appellant’s vocal chord dysfunction, shortness of breath, allergic
4

The Board notes that, following the December 22, 2010 decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

3

rhinitis/hay fever, persistent cough, reactive dysfunction syndrome, sleep apnea with hypersomia
and gastroesophageal reflux disease and her accepted employment injury.5
LEGAL PRECEDENT
Where an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury.6 To establish a causal relationship between the condition as
well as any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence based on a complete medical and factual background supporting
such a casual relationship.7 Causal relationship is a medical issue and the medical evidence
required to establish a causal relationship is rationalized medical evidence.8 Rationalized
medical evidence is evidence which includes a physician’s rationalized medical opinion on the
issue of whether there is a causal relationship between the diagnosed condition and the specific
employment factors identified by the claimant.9 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.10
ANALYSIS
OWCP accepted that appellant’s employment caused the conditions of dysphagia and
chronic pharyngitis, which was subsequently expanded to include chronic obstructive asthma. It
denied her request to expand her claim to include the conditions of achalasia and cariospasm,
cough, unspecified asthma with acute exacerbation and Asthma NOS. The issue is whether
appellant has met her burden of proof to establish that those conditions were causally related to
her accepted injury. The Board finds that she has not met her burden of proof.
In support of her request to expand her claim to include additional conditions, appellant
submitted reports from Drs. Halstead, Spandorfer and Ramey. In his June 8, 2009 report,
Dr. Spandorfer reported diagnoses of occupationally-induced reactive airway dysfunction
syndrome/asthma with acute exacerbation, occupationally-induced allergic rhinitis,
gastroesophageal reflux disease, lower extremity edema, high blood pressure and obstructive
sleep apnea. In subsequent reports, he provided physical findings, spirometry test findings and
diagnoses of employment-related asthma and reactive airways dysfunction syndrome. On
June 17, 2010 Dr. Spandorfer attributed shortness of breath, sinusitis, dysphagia, significant
cough and severe lung exposure to appellant’s paint exposure. However, he offered no medical
5

Id.

6

See Jaja K. Asaramo, 55 ECAB 200 (2004).

7

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

8

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

9

See Phillip L. Barnes 55 ECAB 426 (2004); Leslie C. Moore, 52 ECAB 132 (2000).

10

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

4

reasoning in support of his stated conclusion. Dr. Spandorfer merely offered a conclusion that
appellant’s conditions were due to her pain exposure with no supporting rationale or explanation.
A mere conclusion without the necessary medical rationale explaining how and why
Dr. Spandorfer believes that her accepted chemical exposure could result in a diagnosed
condition is not sufficient to meet her burden of proof.11 The medical evidence must also include
rationale explaining how he reached the conclusion he or appellant is supporting. Dr. Spandorfer
did not provide such an explanation. Due to the foregoing deficiencies these reports are
insufficient to establish appellant’s claim.
In an October 9, 2009 report, Dr. Ramey, a treating Board-certified allergist and internist,
attributed appellant’s occupationally-induced asthma and related symptoms of cough and
shortness of breath to exposure to paint fumes at work on January 5, 2004, February and
December 2005. In support of this conclusion, he stated that this exposure more likely than not
was the cause of her occupational-induced asthma. The Board finds that this report is
speculative or equivocal as Dr. Ramey concludes that appellant’s condition is more likely than
not to be due to her pain exposure. In order to be of probative value, medical opinions should be
expressed in terms of a reasonable degree of medical certainty.12 Furthermore, the Board has
held that medical opinions which are speculative or equivocal are of diminished probative
value.13 Dr. Ramey did not explain how the inhalation of paint fumes at work resulted in
additional respiratory problems. For these reasons, the report is insufficient to meet appellant’s
burden to establish that additional conditions were caused by her employment-related paint
exposure. Similarly, Dr. Ramey’s November 13, 2009 report is also insufficient to support her
request to expand her claim to include additional conditions. While he provided diagnoses of
vocal cord dysfunction, reactive airways dysfunction syndrome and gastroesophageal reflux
disease, he offered no opinion as to the cause of these conditions. Medical evidence offering no
opinion as to the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.14 Thus, this report is also insufficient to support appellant’s burden to
expand her claim to include additional conditions.
Appellant also submitted reports from Dr. Halstead for the period May 1, 2006 through
October 1, 2009, in which she noted treatment for appellant’s voice problems and physical
findings. She diagnosed laryngospasm, cough, voice problems, allergies, gastroesophageal
reflux disease, hoarseness and right true vocal fold varix. On September 21, 2006 Dr. Halstead
stated that appellant’s reactive airway disease, asthma, shortness of breath, hoarseness and chest
tightness had been present since her paint exposure on December 1, 2005. She offered no
11

See T.M., Docket No. 08-975 (issued February 6, 2009); Albert C. Brown, 52 ECAB 152 (2000) (a medical
conclusion unsupported by medical rationale is of diminished probative value).
12

See Roy L. Humphrey, 57 ECAB 238 (2005) (to be probative, the medical opinion must be of reasonable
medical certainty and supported by medical rationale).
13

See S.E., Docket No. 08-2214 (issued May 6, 2009) (The Board has generally held that opinions such as the
condition is “probably” related, “most likely” related or “could be” related are speculative and diminish the
probative value of the medical opinion); Cecelia M. Corley, 56 ECAB 662 Docket No. 05-324 (issued August 16,
2005) (medical opinions which are speculative or equivocal are of diminished probative value).
14

See S.E., id.; J.M., 58 ECAB 303 (2007); Ellen L. Noble, 55 ECAB 530 (2004).

5

opinion explaining why appellant’s condition was caused by her paint exposure other than noting
that the conditions occurred following her paint exposure on December 1, 2005. Neither the
mere fact that a disease or condition manifests itself during a period of employment nor the
belief that the disease or condition was caused or aggravated by employment factors or incidents
is sufficient to establish that the conditions are due to her paint exposure.15 As noted above, in
order to support her claim appellant must submit a physician’s report, in which Dr. Halstead
reviews the employment factors identified by appellant as causing her condition and, taking these
factors into consideration as well as findings upon examination and the medical history, state
whether the employment injury caused or aggravated the diagnosed conditions and present
medical rationale in support of the opinion.16 None of the reports submitted by Dr. Halstead
contain any medical rationale supporting the conclusion that the conditions she diagnosed were
caused by appellant’s paint exposure at work. Thus, her reports are insufficient to support an
expansion of appellant’s claim to include additional conditions.
Appellant also submitted a letter from Mr. Otero, a physician specialty accounts
coordinator, who requested OWCP expand her claim to include the conditions of diagnoses of
achalasia and cariospasm, cough, unspecified asthma with acute exacerbation and Asthma NOS.
As a lay person, Mr. Otero does not qualify as a physician under FECA. Therefore, his opinion
has no probative value.17
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 failed to meet her burden of proof to expand her claim to
include additional conditions.

15

See Phillip L. Barnes, 55 ECAB 426 (2004).

16

See Robert Broome, 55 ECAB 339 (2004).

17

5 U.S.C. § 8101(2); see also Desiderio Martinez, 55 ECAB 245 (2004); Robert G. Morris, 48 ECAB 238
(1996); James A. Long, 40 ECAB 538 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 22, 2010 is affirmed.
Issued: November 22, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 21-0839
Issued: October 29, 2021

Case Submitted on the Record

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

JURISDICTION
On May 11, 2021 appellant filed a timely appeal from a May 3, 2021 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 to
consider the merits of this case. 2
ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted March 11, 2021 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 3, 2021 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On March 12, 2021 appellant, then a 38-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 11, 2021 he sustained a left thigh injury when he was struck
by a passing car while in the performance of duty. He stopped work on the date of injury. On the
reverse side of the form, M.D., appellant’s supervisor, indicated that appellant had been injured
while in the performance of duty and that his knowledge of the facts agreed with appellant’s
account of events.
Appellant submitted March 11, 2021 municipal accident reports which indicated that at
1:28 p.m. that day while walking across a street, he had been struck by the side mirror of a vehicle
turning left at an intersection. He reported pain in his left leg.
OWCP received March 11, 2021 hospital emergency department medication and discharge
instructions signed by, Dr. Sabrina Sokolovsky, an emergency medicine physician, who noted that
appellant had been struck by a vehicle and sustained a contusion.
In a development letter dated March 30, 2021, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence necessary to
establish his claim and provided a questionnaire for his completion. OWCP afforded appellant 30
days to respond.
OWCP subsequently received a March 22, 2021 attending physician’s report, Part B of an
authorization for examination and/or treatment (Form CA-16), and a March 31, 2021 duty status
report (Form CA-17) by Dr. Yolande Bernard, an internist and physiatrist. Dr. Bernard noted that
appellant had been injured at work on March 11, 2021. She noted unspecified findings of the left
knee and thigh, ordered an imaging study of the left knee, and prescribed physical therapy.
Dr. Bernard held appellant off from work.
Appellant also submitted March 23, 2021 x-rays of the left femur, tibia, and fibula which
were negative for fracture or dislocation. A March 26, 2021 magnetic resonance imaging (MRI)
scan of the left knee demonstrated a synovial effusion, patellar sublu xation, patellofemoral
chondromalacia, patellofemoral joint narrowing, prominent patellar tendinosis/tendinopathy, a
distal posterior cruciate ligament sprain, anterior cruciate ligament sprain, and tibial intercondylar
surface irregularity.
On May 3, 2021 OWCP received multiple hospital medical emergency department records,
which included a full complement of treatment provided by Dr. Sokolovsky and the medical staff
during appellant’s hospital admission on March 11, 2021.
By decision dated May 3, 2021, OWCP accepted that the March 11, 2021 employment
incident occurred as alleged. However, it denied the claim, finding that appellant had not
submitted rationalized medical opinion evidence supporting a causal relationship between the
accepted employment incident and the claimed left lower extremity injury. OWCP based its
decision on the review of Dr. Bernard’s Form CA-20, noting that it was the “sole record from a
physician discussing causal relationship.” It thus found that the requirements had not been met to

2

establish an injury and/or a medical condition causally related to the accepted employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.7
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.8 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
specific employment incidents identified by the employee. 9
ANALYSIS
The Board finds that this case is not in posture for decision.

3

Supra note 1.

4

V.L., Docket No. 20-0884 (issued February 12, 2021); F.H., Docket No. 18-0869 (issued January 29, 2020); J.P.,
Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989).
5

C.H., Docket No. 20-1212 (issued February 12, 2021); L.C., Docket No. 19-1301 (issued January 29, 2020); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6

V.L., supra note 4; P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued
September 16, 2016); Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.O., Docket No. 20-1243 (issued May 28, 2021); T.J., Docket No. 19-0461 (issued August 11, 2020); K.L.,
Docket No. 18-1029 (issued January 9, 2019); John J. Carlone, 41 ECAB 354 (1989).
8

C.H., supra note 5; S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued
April 24, 2019); Robert G. Morris, 48 ECAB 238 (1996).
9

R.O., supra note 7; V.L., supra note 4; T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No.
18-0366 (issued January 22, 2020); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

OWCP based its denial of appellant’s claim on a Form CA-20 submitted by Dr. Bernard,
finding that it was the “sole record from a physician” addressing the issue of causal relationship.
It, however, failed to review and address all of the evidence documenting appellant’s emergency
department treatment by Dr. Sokolovsky and the medical staff that was received on May 3, 2021,
the same date it issued its final decision. In the case of William A. Couch,10 the Board held that,
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. OWCP’s procedures provide
that it is crucial that all relevant evidence received prior to the issuance of final decision is
addressed, as the Board’s decisions are final with regard to the subject matter appealed. 11 This
principle applies with regard to evidence received by OWCP the same day a final decision is
issued.12 As OWCP did not address all of the evidence that appellant submitted the day it issued
its May 3, 2021 decision, the Board finds that this case is not in posture for decision.
For this reason, the case will be remanded to OWCP to enable it to properly consider all of
the evidence submitted at the time of the issuance of the May 3, 2021 decision. Following this
and other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

10

41 ECAB 548 (1990); see also P.B., Docket No. 21-0157 (issued September 2, 2021); R.D., Docket No. 17-1818
(issued April 3, 2018).
11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter 2.1401.5(b)(2) (November 2012);
William A. Couch, id. See also C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB
475 (2004).
12

See T.B., Docket No. 21-0448 (issued September 27, 2021); S.S., Docket No. 19-1737 (issued April 7, 2020);
J.S., Docket No. 16-0505 (issued July 18, 2016); Linda Johnson, 45 ECAB 439 (1994) (evidence received the same
day as the issuance of OWCP’s decision must be reviewed).

4

ORDER
IT IS HEREBY ORDERED THAT the May 3, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.13
Issued: October 29, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

13

A completed Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical
facility or physician, when properly executed. The form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See
20 C.F.R. § 10.300(c); S.P., Docket No. 19-1904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued
February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003). However, as the obverse of the Form CA-16 is not of
record, it has not been established that the employing establishment duly signed or authorized the form. There is,
therefore, insufficient evidence that a contractual obligation was created.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.G., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Carol Stream, IL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-708
Issued: June 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 5, 2013 appellant filed a timely appeal from an August 27, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than one year elapsed from the last merit decision dated July 1,
2008 to the filing of this appeal, the Board lacks jurisdiction to review the merits of her case
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2) (2008). For final adverse OWCP decisions issued on and after
November 19, 2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e) (2009).

FACTUAL HISTORY
This case has previously been before the Board. On July 1, 2008 the Board affirmed a
February 16, 2007 OWCP hearing representative’s decision, which affirmed a September 20,
2006 denial of appellant’s emotional condition claim.3 The Board found that she failed to
substantiate any compensable factor of employment. The Board also affirmed OWCP’s
August 7, 2007 decision denying appellant’s request for reconsideration. In a December 19,
2009 decision, the Board affirmed a January 16, 2009 nonmerit OWCP decision, which declined
to reopen her case for further consideration of the merits.4 The facts of the case as set forth in
the Board’s prior decisions are incorporated herein by reference.5
On December 21, 2010 OWCP received appellant’s December 14, 2010 request for
reconsideration. Appellant stated that she should have filed her claim as a recurrence of an
accepted neck injury6 and not a new injury.
By decision dated August 27, 2012, OWCP denied appellant’s request for
reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.8 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.9 When a claimant fails to meet one of the above standards, OWCP

3

Docket No. 08-467 (issued July 1, 2008).

4

Docket No. 09-1320 (issued December 17, 2009).

5

On August 1, 2006 appellant, then a 37-year-old postal mail handler, filed an occupational disease claim
alleging depression, anxiety, panic attacks and persistent nervousness due to the actions of her supervisor, Betty
Jones. She first became aware of the condition and its relationship to her employment on February 27, 2006.
6

Appellant noted the claim number for her neck injury as xxxxxx241 with an injury date of April 11, 2003.

7

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
8

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
9

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).

2

will deny the application for reconsideration without reopening the case for review on the
merits.10
ANALYSIS
On December 14, 2010 appellant requested reconsideration. However, she did not
submit any relevant and pertinent new evidence or new relevant argument with her request. In
her request, appellant noted that she should have filed a claim for a recurrence under another
claim instead of filing a new occupational disease claim. Because she did not raise new
arguments or present new evidence that OWCP erroneously applied or interpreted a specific
point of law; advanced any relevant legal arguments not previously considered by OWCP; or
present any relevant and pertinent new evidence, she is not entitled to further review of the
merits of her claim under any criteria of section 10.606(b)(3).11
As appellant did not meet any of the regulatory requirements for review of the merits of
her claim, OWCP properly denied her December 14, 2010 request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen her case for
further review of the merits under 5 U.S.C. § 8128.

10

20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
11

A.K., Docket No. 09-2032 (issued August 3, 2010); W.C., 59 ECAB 372 (2008); Susan A. Filkins, 57 ECAB
630 (2006).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 27, 2012 is affirmed.
Issued: June 24, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Warwick, RI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-132
Issued: June 11, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 22, 2013 appellant filed a timely appeal from the May 8 and August 14, 2013
nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP) denying his
requests for reconsideration on the grounds that they were untimely filed and failed to establish
clear evidence of error. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit decisions by
OWCP. The last merit decision of record was OWCP’s April 4, 2012 decision denying
appellant’s claim for wage-loss compensation beginning August 9, 1992. Because more than
180 days elapsed from issuance of the last merit decision to the filing of this appeal, the Board
lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

ISSUE
The issue whether OWCP properly refused to reopen appellant’s case for further review
of the merits on the grounds that his requests were untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. On May 13, 2008 the Board issued an
order remanding the case to OWCP for proper assemblage of the record and a de novo decision
as the case record was missing materials dated August 4, 1995 through December 14, 2004.3 By
decision dated December 1, 2008, OWCP denied appellant’s claim for compensation beginning
August 9, 1992. It found that there were no missing documents for the period August 4, 1995
through December 14, 2004.4 By decision dated October 22, 1999, the Board affirmed the
December 1, 2008 decision, which found that appellant did not meet his burden of proof to
establish entitlement to wage-loss compensation beginning August 9, 1992.5 In decisions dated
January 14, 2011 and April 4, 2012, OWCP reviewed the case on its merits and denied
modification of the wage-loss compensation determination. On December 20, 2012 the Board
issued an order dismissing appeal as it was untimely filed and the Board did not have jurisdiction
to review the appeal. The Board found that appellant had not offered a reason to explain his
failure to timely file an appeal with supporting documentation sufficient to establish compelling
circumstances.6 The facts of the case as set forth in the Board’s prior decisions are incorporated
herein by reference.
On March 29, 2013 appellant requested reconsideration of OWCP’s April 4, 2012
decision on an appeal request form from the January 14, 2011 decision. The request was
postmarked March 29, 2013 and received by OWCP April 5, 2013.
In an April 18, 2013 letter, OWCP requested that appellant clarify for which OWCP
decision (April 4, 2012 or January 14, 2011) reconsideration was sought. In response, appellant
submitted a copy of his appeal request form indicating that he was requesting reconsideration of
OWCP’s April 4, 2012 decision. The evidence submitted in support of his reconsideration
request included: September 6 and 29, 2012 letters designating his representative; a March 11,
3

Docket No. 08-278 (issued May 13, 2008).

4

On January 14, 1992 appellant, then a 49-year-old construction representative, sustained injuries to his neck and
back when he slipped on a wet dock at work. He stopped work on January 16, 1992 and never returned. Appellant
began leave without pay on August 9, 1992 and retired on September 2, 1993. Effective August 9, 1992, he elected
a disability retirement annuity from the Office of Personnel Management (OPM). OWCP accepted the claim for
cervical and lumbosacral sprains and paid compensation benefits until the election of OPM benefits. The record
reflects that OPM reached a settlement with appellant regarding an overpayment for the period August 9, 1992
through March 29, 1993 and thereafter paid benefits beginning March 30, 1993. On January 5, 2007 appellant
elected to receive wage-loss compensation from OWCP retroactive to August 9, 1992, in lieu of OPM benefits. He
asserted that his disability was due to his accepted condition.
5

Docket No. 09-519 (issued October 22, 2009).

6

Docket No. 13-169 (issued December 20, 2012).

2

2013 statement requesting an extension of appeal request and an undated response from the
Appeals Unit, Freedom of Information Act/Privacy Act; position description; statements dated
March 39, 2013; December 20, 2006 statement of earnings and leave; July 13, 2009 letter from
United States Bankruptcy Court; letters from Harmon Law Offices dated September 15 and 23,
2009, a March 5, 2010 release of all claims; statements from Dr. Michael Goldstein, D.C., and
statement from appellant regarding bill payment issue; an August 30, 1995 report regarding a left
elbow condition; and a February 24, 1993 letter from appellant’s employer to Dr. Richard
Bertini, a Board-certified orthopedic surgeon.
The medical reports of Dr. John Adams, a Board-certified internist, dated March 19,
2002, April 15, 2005 and October 18, 2007 were submitted. He advised that appellant had a
prior history of low back pain in the L4-5 area. Dr. Adams treated her on December 12, 2013 for
low back pain with muscle relaxants and ibuprofen therapy. On December 11, 2006 appellant
continued to complain of intermittent discomfort in his lower back. Dr. Adams stated that a
November 18, 1992 magnetic resonance imaging (MRI) scan was consistent with multilevel disc
bulging and osteophytes as well as encroachment of the left L4-5 neural foramen.
Appellant resubmitted evidence previously of record, including medical reports from
Dr. Albert Ackil, a Board-certified internist, dated June 15, 2005, October 26, 2006, May 31,
2007 and September 22, 2010; an undated addendum to a Rehabilitation Assessment; a July 11,
1995 report from the Hand Therapy Program; an October 2, 2006 MRI scan of lumbar spine and
a December 17, 2011 report from Dr. Kenneth Lambert, a Board-certified orthopedic surgeon.
By decision dated May 8, 2013, OWCP denied appellant’s reconsideration request as
untimely filed and failing to establish clear evidence of error. The decision noted that the only
right to appeal was to the Board.
In letters dated May 10 and 17, 2013, appellant disagreed with OWCP’s May 8, 2013
decision finding his reconsideration request untimely. He contended that his reconsideration
request was mailed by registered mail on March 29, 2013. A copy of the U.S. Postal Service
Certified Mail Receipt and accompanying sales receipt both dated March 29, 2013, showing an
expected delivery of Monday, April 1, 2013 were submitted.
By decision dated August 14, 2013, OWCP denied appellant’s reconsideration request as
untimely filed and failed to establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.7
Section 10.607(a) of the implementing regulations provide that an application for reconsideration
must be received within one year of the date of OWCP’s decision for which review is sought.8

7

20 C.F.R. § 10.607(a).

8

Id.

3

The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.9
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation, if the claimant’s application for review shows clear evidence of error on the part
of OWCP in its most recent merit decision. To establish 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.10
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.11
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.12 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.13 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.14 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of
OWCP.15
ANALYSIS
In its May 8, 2013 decision, OWCP determined that appellant failed to file a timely
application for review. An application for reconsideration must be received within one year of
the date of OWCP’s decision.16 Appellant’s March 29, 2013 request for reconsideration was
received on April 5, 2013, more than one year after the date of the last merit decision of record
on April 4, 2012. It was untimely. On May 10 and 17, 2013 appellant again requested
reconsideration. He did not raise any argument pertaining to OWCP’s last merit decision of
April 4, 2012. Rather, appellant argued that OWCP erred in finding his March 29, 2013 request
for reconsideration untimely in the May 8, 2013 decision. In support of his contention, he
submitted a copy of the U.S. Postal Service Certified Mail Receipt and accompanying sales
receipt both dated March 29, 2013, showing an expected delivery of Monday, April 1, 2013.
9

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

10

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

11

Annie L. Billingsley, 50 ECAB 210 (1998).

12

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

13

Id.

14

Id.

15

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

16

20 C.F.R. § 10.607.

4

Section 10.607(a) of the implementing regulations provide that an application for reconsideration
must be received, not sent, within one year of the date of OWCP’s decision for which review is
sought.17 The record reflects that appellant’s March 29, 2013 request for reconsideration was
received by OWCP on April 5, 2012 and, thus, was not within one year of the April 4, 2012
decision. Contrary to his assertions, the request for reconsideration received on April 5, 2012
was not timely filed.
As appellant’s requests for reconsideration were untimely, he must demonstrate clear
evidence of error by OWCP in denying his claim.18
The Board finds that the evidence submitted by appellant in support of his March 29,
2013 request for reconsideration does not raise a substantial question as to the correctness of
OWCP’s decision denying wage-loss compensation for the period beginning August 9, 1992
through the present or shift the weight of the evidence of record in his favor. Dr. Adams, in his
October 18, 2007 report, notes examination findings on December 11, 2006 and December 12,
2012 and discusses results of a November 18, 1992 lumbar MRI scan. However, he fails to
provide any opinion to support that the back pain in the L4-5 region is connected to appellant’s
work activities. Thus, Dr. Adams’ report is insufficient to establish that appellant was disabled
for the claimed period beginning August 9, 1992 and is also insufficient to establish clear
evidence of error in the correctness of OWCP’s April 4, 2012 decision denying his claim. The
other evidence appellant submitted, which pertained to information requests, other legal matters
and a left elbow condition, are irrelevant to the issue of whether OWCP erred in denying
wage-loss compensation beginning August 9, 1992 onward. Appellant also submitted letters
from her counsel, a Freedom of Information Act appeal request, earnings and leave statements, a
statement regarding bill payment. This evidence is insufficient to show that OWCP’s decision
was erroneous or raise a substantial question as to the correctness of OWCP’s decision.
Appellant has not submitted any argument or evidence of sufficient probative value to
shift the weight of the evidence in his favor or raise a substantial question as to the correctness of
OWCP’s April 4, 2012 decision denying wage-loss compensation beginning August 9, 1992
onward. Consequently, OWCP properly denied his reconsideration request as it was untimely
and failed to establish clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for reconsideration as
they were untimely filed and failed to establish clear evidence of error.

17

Id. at § 10.607(a).

18

See Debra McDavid, 57 ECAB 149 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the August 14 and May 8, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 11, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

6