United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 13-1903
Issued: January 16, 2014

Case Submitted on the Record

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

JURISDICTION
On August 14, 2013 appellant filed a timely appeal from the July 10, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury to the wrist
and thumb causally related to factors of her federal employment.
FACTUAL HISTORY
On April 16, 2013 appellant, then a 50-year-old mailhandler, filed an occupational
disease claim (Form CA-2) alleging that she sustained an injury to the wrist and thumb in the
performance of duty. She stated that her duties as a mailhandler included several repetitive
tasks, which aggravated her pain. Appellant first became aware of her condition on February 14,
1

5 U.S.C. § 8101 et seq.

2013 and of its relationship to her employment on March 21, 2013. She explained that she had
not filed her claim within 30 days after March 21, 2013 because she was absent from work until
April 16, 2013. Appellant noted that her physician diagnosed her with carpal tunnel syndrome
and that a magnetic resonance imaging (MRI) scan showed a tear in the wrist and thumb area.
In a note dated March 25, 2013, Dr. Ranga Krishna, a Board-certified neurologist,
diagnosed appellant with carpal tunnel syndrome, stating that she was disabled due to this
diagnosis and recommended that she not return to work until after her next visit on
April 15, 2013.
In a report dated April 25, 2013, Dr. Jeremie Rachunow, a Board-certified family
physician, diagnosed appellant with synovitis of the hand and wrist and trigger finger. He noted
that her pain was acquired from work activities and became persistent on March 7, 2013, which
prompted her to seek medical treatment. Dr. Rachunow reviewed appellant’s work activities,
noting that she was a mailhandler for the U.S. Postal Service on modified duty requiring
handling of “return to sender” mail, placing yellow stickers on mail flats, sorting magazines and
cutting out magazines for postage due to be returned. An x-ray of her left wrist was taken on
March 21, 2013 and she was referred to Dr. Krishna on March 25, 2013. Appellant was
scheduled for an MRI scan of the left thumb on March 29, 2013. Dr. Rachunow reviewed the
results of this MRI scan and noted a partial tear of the triangular fibrocartilage, an intact carpal
tunnel, a sprain or strain of the flexor tendon of the left first digit at the left metacarpophalangeal
joint, a sprain or strain of the mid-proximal phalanx of the first digit of the left hand, mild to
moderate degenerative changes involving all metacarpophalangeal joints of the left hand and
joint fluid at the radiocarpal, midcarpal and distal carpal compartments. Dr. Rachunow
recommended physical therapy three times per month and stated that appellant was disabled by
her condition.
In a prescription form dated April 25, 2013, Dr. Rachunow prescribed a treatment
program consisting of manual therapy, soft tissue massage, paraffin bath, therapeutic activity, an
ultrasound and electronic stimulation.
In an excuse slip dated March 7, 2013, Dr. Teofila Malnum, a family physician, stated
that appellant was unable to return to work until March 31, 2013.
On May 10, 2013 OWCP requested additional factual and medical evidence from
appellant. It noted that appellant had not substantiated the factual elements of her claim and that
the medical evidence was insufficient to support a causal relationship between her claimed injury
and factors of her federal employment. OWCP afforded her 30 days to submit additional
evidence.
In a form report dated March 21, 2013, Dr. Malnum stated that appellant’s condition
commenced on March 7, 2013. She noted that appellant’s essential job functions included
handling “return to sender” mail, placing yellow stickers on mail flats and magazines and cutting
out magazines for postage due to be returned. Dr. Malnum stated that appellant was unable to
perform her job function of lifting and listed her symptoms as pain in the wrist with a tingling
sensation. She estimated that appellant’s period of incapacity began on March 8, 2013 and
would end on March 30, 2013.

2

In an attending physician’s report dated April 25, 2013, Dr. Rachunow related that
appellant noted that her pain became constant on February 14, 2013 on repetitive prehensile
movement, flexion and extension of the wrist, which were part of her work activities. He noted
limited movement and weakness of the left wrist, hand and thumb, as well as trigger finger on
appellant’s first, second and third digits and swelling of the left thumb. Dr. Rachunow checked
the box indicating that appellant’s condition was caused or aggravated by an employment
activity, explaining that her pain was acquired from work activities that required lifting and
carrying mail, cutting labels requiring fine grip movement and constant bending of the wrist.
On May 30, 2012 appellant responded to OWCP’s inquiries. She listed the duties of her
job that she believed contributed to her condition, noting that she cut out “return to sender” mail,
placed stickers on mail, marked the type of return on the sticker, cut out labels from magazines
and put magazines into postage due envelopes. Appellant stated that she performed these duties
for her entire working day, except for a 45-minute lunch break and three 10-minute rest breaks.
She described activities outside of her federal employment. Appellant noted that she had a right
arm injury in the 1990’s and clarified that her claim was for occupational disease rather than for
traumatic injury.
In a record of diagnostic testing dated March 29, 2013, Dr. Harold S. Pames, a
radiologist, described the results of an MRI scan performed on that date. On examination of the
left wrist and left thumb, he noted that there was no evidence of fracture or dislocation.
Dr. Pames stated his impression that appellant had a partial tear of the triangular fibrocartilage,
joint fluid at the radiocarpal, midcarpal and distal carpal compartments, sprain or strain of the
flexor tendon of the left first digit at the left metacarpophalengeal joint and at the mid-proximal
phalanx of the first digit of the left hand. He noted that the visualized carpal tunnel appeared
intact.
By decision dated July 10, 2013, OWCP denied appellant’s claim, finding that the
medical evidence was not sufficient to support her claim for compensation because it did not
establish that her medical condition was causally related to factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
2

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Michael E. Smith, 50 ECAB 313, 315 (1999).

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statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.4 Rationalized medical
opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the compensable
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.5 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.6
ANALYSIS
Appellant filed a claim alleging that she sustained conditions of the hand and thumb due
to factors of her federal employment. OWCP accepted that she was a federal employee, that the
identified factors of employment within her performance of duty and a medical condition had
been diagnosed, but found that she did not submit sufficient medical evidence to establish that
she sustained the claimed condition due to accepted work factors.
The Board finds that appellant did not submit sufficient medical evidence to establish that
she sustained conditions of the hand and thumb due to factors of her federal employment.
Appellant submitted reports from several physicians that included diagnoses, recommendations
for treatment and descriptions of work factors. However, these reports did not provide a
rationalized medical opinion explaining how she sustained any specific condition due to factors
of her federal employment.
In a note dated March 25, 2013, Dr. Krishna diagnosed appellant with carpal tunnel
syndrome. In a prescription form dated April 25, 2013, Dr. Rachunow prescribed a treatment
program. In an excuse slip dated March 7, 2013, Dr. Malnum stated that appellant was unable to
return to work until March 31, 2013. In a form report dated March 21, 2013, she stated that
appellant’s condition commenced on March 3, 2013. Dr. Malnum noted that appellant’s
essential job functions included handling “return to sender” mail, placing yellow stickers on mail
flats and magazines and cutting out magazines for postage due to be returned. She stated that
appellant was unable to perform her job function of lifting and listed her symptoms as pain in the
wrist with a tingling sensation. In a record of diagnostic testing dated March 29, 2013,
4

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

5

Leslie C. Moore, 52 ECAB 132, 134 (2000).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

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Dr. Pames described the results of an MRI scan performed on that date. On examination of the
left wrist and left thumb, he noted that there was no evidence of fracture or dislocation.
Dr. Pames stated his impression that appellant had a partial tear of the triangular fibrocartilage,
joint fluid at the radiocarpal, midcarpaland distal carpal compartments, sprain or strain of the
flexor tendon of the left first digit at the left metacarpophalengeal joint and at the mid-proximal
phalanx of the first digit of the left hand. He noted that the visualized carpal tunnel appeared
intact.
The Board has held that medical evidence that does not discuss as to the causal
relationship between an appellant’s injury and specified work-related factors is of diminished
probative value on the issue of causal relationship.7 Dr. Krishna’s March 25, 2013 note and
Dr. Pames’ March 29, 2013 notes relative to diagnostic testing contain diagnoses, but no
opinions as to the causal relationship between those diagnoses and work-related factors.
Dr. Rachunow’s April 25, 2013 prescription form, along with Dr. Malnum’s March 7, 2013
excuse slip and March 21, 2013 form report, contain neither diagnoses of conditions nor opinions
as to a causal relationship between appellant’s condition and work-related factors.
Appellant submitted two reports from Dr. Rachunow containing an opinion on causal
relationship. In a report dated April 25, 2013, Dr. Rachunow diagnosed her with synovitis of the
hand and wrist and trigger finger. He noted that appellant’s pain was acquired from work
activities. Dr. Rachunow reviewed her duties of employment, stating that she worked as a
mailhandler for the U.S. Postal Service on modified duty requiring handling of “return to sender”
mail, placing yellow stickers on mail flats, sorting magazine and cutting out magazines for
postage due to be returned. In an attending physician’s report of the same date, he related that
appellant noted her pain became constant on February 14, 2013 on repetitive prehensile
movement, flexion and extension of the wrist, which were part of her work activities.
Dr. Rachunow noted limited movement and weakness of the left wrist, hand and thumb, as well
as trigger finger on appellant’s first, second and third digits and swelling of the left thumb. He
checked the box indicating that appellant’s condition was caused or aggravated by an
employment activity, explaining that her pain was acquired from work activities that required
lifting and carrying mail, cutting labels which require fine grip movement and constant bending
of the wrist.
While Dr. Rachunow did provide an opinion on causal relationship in his April 25, 2013
reports, his opinion was not well rationalized. To be well rationalized, the opinion of a physician
must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.8 Dr. Rachunow identified certain work factors and provided diagnoses, but
failed to provide a detailed explanation as to how specific physical findings and results of
diagnostic testing supported his opinion on causal relationship. He asserted that appellant’s
condition was caused or aggravated by employment activities, but did not explain how those
activities caused her condition. The Board has held that the fact that a condition manifests itself

7

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

8

Leslie C. Moore, supra note 5.

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or worsens during a period of employment9 or that work activities produce symptoms revelatory
of an underlying condition does not raise an inference of causal relationship between a claimed
condition and employment factors.10 Therefore, appellant has failed to meet her burden of proof
to establish her claim for a work-related hand and thumb condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she developed an injury to the wrist
and thumb causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the July 10, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 16, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

B.B., Docket No. 13-256 (issued August 13, 2013); Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Gary, IN, Employer
__________________________________________

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

Docket No. 19-0436
Issued: August 13, 2019

Case Submitted on the Record

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

JURISDICTION
On December 27, 2018 appellant filed a timely appeal from a November 1, 2018 merit
decision and a November 30, 2018 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3

1
On December 27, 2018 appellant filed her appeal to the Board. On January 30, 2019 she filed a notice of
recurrence of disability (Form CA-2a) claiming wage-loss compensation for the same period as on the present appeal.
As noted, the Board obtained jurisdiction over this matter on December 27, 2018. Therefore, the subsequent decision
of OWCP dated March 5, 2019 is null and void as the Board and OWCP may not simultaneously have jurisdiction
over the same issue. See 20 C.F.R. § 501.2(c)(3), § 10.626; see also M.C., Docket No. 18-1278, n.1 (issued March 7,
2019); Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman,43 ECAB 770 (1992); Douglas E. Billings, 41
ECAB 880 (1990).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the November 30, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish total
disability commencing May 8, 2016 due to her accepted employment injury; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 28, 2016 appellant, then a 38-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging a lower back condition that allegedly occurred
on May 8, 2016 due to factors of her federal employment. She indicated that she pulled her lower
back unloading mail from an all-purpose container (APC) and placing it onto/into a delivery
barcode sorter (DBCS) machine. Appellant stopped work on May 8, 2016. OWCP assigned the
claim OWCP File No. xxxxxx688.4 Appellant was working part-time, limited duty at the time of
the May 8, 2016 injury.
Appellant was treated by Dr. Bruce J. Montella, a Board-certified orthopedic surgeon, who
in an October 20, 2016 report noted that as of that date she was required to remain off work.
Dr. Montella explained that she could require additional pain medications and thus become a
danger to coworkers. Thereafter, he also completed a work restriction form dated November 3,
2016 in which he reported that appellant was “unable to perform [appellant] job duties as a mail
clerk due to her on[-]the[-]job injury.” Dr. Montella noted that she was to remain off work until
further evaluation.
After development of the evidence, OWCP initially denied appellant’s claim by decision
dated January 4, 2017. Appellant submitted several requests for reconsideration on January 13,
April 3,5 and July 14, 2017.6
By decision dated September 7, 2017, OWCP accepted appellant’s claim for lumbar sprain.
On September 12, 2017 appellant filed a claim for wage-loss compensation (Form CA-7)
for total disability for the period May 8, 2016 to September 1, 2017. On the reverse side of the
claim form the employing establishment confirmed that she was on leave without pay status for
the claimed period. Appellant filed numerous additional CA-7 forms claiming continuing
compensation for total disability.
In a development letter dated September 21, 2017, OWCP informed appellant that it
received her claim for wage-loss compensation commencing May 8, 2016. It advised her that the
4

Appellant has two prior lumbar injury claims, which have been administratively combined with the current claim.
Under OWCP File No. xxxxxx420, she has an accepted traumatic injury claim (Form CA-1) for a lumbar sprain,
which arose on June 21, 2005. Under OWCP File No. xxxxxx047, appellant has an accepted occupational disease
claim (Form CA-2) for lumbar sprain, which arose on or about August 21, 2012.
5

Appellant requested reconsideration of OWCP’s March 21, 2017 decision, which denied modification of the
January 4, 2017 denial decision.
6

Appellant requested reconsideration of OWCP’s July 5, 2017 decision, which denied modification of the
March 21, 2017 decision.

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evidence submitted was insufficient to establish her claim and requested that she submit additional
evidence to establish that she was unable to work during the period claimed as a result of her
May 8, 2016 employment injury. Appellant was afforded 30 days to submit the requested
information.
In a September 26, 2017 letter, Dr. Montella, indicated that on May 8, 2016 appellant
aggravated her back when she felt a pull and sharp pain in her back while loading mail out of the
APCs on the DBCS machine. He provided examination findings and reported that she had been
off work since May 13, 2016 per his prior recommendation. Dr. Montella noted that appellant
might require surgery in the future.
By decision dated January 30, 2018, OWCP denied appellant’s claim for wage-loss
compensation commencing May 8, 2016 finding that the medical evidence of record failed to
establish that she was disabled from work commencing on May 8, 2016 as a result of her accepted
lumbar sprain injury.
On February 12, 2018 appellant again requested reconsideration.
Appellant also submitted various additional reports by Dr. Montella. In a February 6, 2018
examination note and work restriction form, Dr. Montella related her complaints of constant low
back pain radiating into her bilateral lower extremities. He continued to opine that appellant should
not work until further evaluation.
In a February 20, 2018 letter, Dr. Montella noted that appellant was working limited duty
on May 8, 2016 when she traumatically injured her back while loading mail out of APCs on the
DBCS machine. He indicated that, since the May 8, 2016 employment incident, appellant had
ongoing and chronic lumbosacral spasms, weakness, and antalgic appearing gait pattern and
tenderness to palpation at the midline and decreased forward flexion and tenderness upon
examination. Dr. Montella reported that she had been off work since May 13, 2016.
OWCP received additional work restriction notes from Dr. Montella dated May 13,
June 22, August 9, November 9, and December 21, 2016 and February 20, July 28, September 15,
and October 30, 2017. Each note indicated that appellant should be off work until further
evaluation. Dr. Montella reported diagnoses of intervertebral disc disorders and lumbar spine
sprain.
In a letter dated April 18, 2018, OWCP requested that Dr. Montella review a statement of
accepted facts and provide a narrative report explaining how the May 8, 2016 employment incident
caused or contributed to an aggravation of lumbar herniated disc condition and how appellant’s
accepted lumbar sprain injury had worsened to the extent that she was unable to work commencing
May 13, 2016.
Dr. Montella responded to OWCP’s letter on April 24, 2018. He noted that on May 8,
2016 appellant sustained an aggravation of her work-related back injury, which included
aggravated lumbar sprain and lumbar disc herniation. Dr. Montella explained which examination
findings supported the diagnosis of an aggravation of lumbar disc herniation, including persistent
parapsinal tenderness, diminished range of motion, mildly diminished sensation bilaterally at L5,
and an antalgic gait. He reported that appellant was “not medically capable to return to work
because of ongoing pain and difficulty and the medical care required to treat [appellant’s]
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condition.” Dr. Montella explained that her increasing pain resulted from any increasing of
exertion and required increasing pain medication, which put her and other people in her work
environment at risk. He completed a work restriction form and work capacity evaluation (Form
OWCP-5c) which related that appellant could not work.
By decision dated June 7, 2018, OWCP denied modification of its January 30, 2018
decision denying appellant’s claim for wage-loss compensation commencing May 8, 2016.
On July 11, 2018 appellant requested reconsideration of the June 7, 2018 decision denying
wage-loss compensation benefits.
In a June 25, 2018 letter, Dr. Montella noted that after the May 8, 2016 aggravation
appellant was “unable to work at all.” He opined that the comparisons and measurements were
evidence of a significant change in her lumbar condition following the May 8, 2016 employment
incident.
By decision dated October 4, 2018, OWCP denied modification of its June 7, 2018
decision.
On October 11, 2018 appellant requested reconsideration and submitted additional
evidence.
In an October 30, 2018 report, Dr. Jerry Powell, an emergency medicine specialist,
reviewed appellant’s history and opined that the May 8, 2016 injury still caused her “daily pain
and limits function and restricts [appellant’s] range of motion and ability to work.”
By decision dated November 1, 2018, OWCP denied modification of the October 4, 2018
decision.
On November 8, 2018 appellant requested reconsideration.
By decision dated November 30, 2018, OWCP denied further merit review of appellant’s
claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.8 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.9

7

Supra note 2.

8

See B.K., Docket No. 18-0386 (issued September 14, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005);
Nathaniel Milton, 37 ECAB 712 (1986).
9

See D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S. Jefferson, id.

4

The term disability is defined as the incapacity, because of an employment injury, to earn
the wages the employee was receiving at the time of the injury.10 Disability is thus not synonymous
with physical impairment, which may or may not result in an incapacity to earn wages.11 An
employee who has a physical impairment causally related to a federal employment injury, but who
nevertheless has the capacity to earn the wages he or she was receiving at the time of injury, has
no disability as that term is used in FECA.12
Whether a particular injury causes an employee to become disabled from work, and the
duration of that disability, are medical issues that must be proven by a preponderance of reliable,
probative, and substantial medical evidence.13 Findings on examination are generally needed to
support a physician’s opinion that an employee is disabled for work.14 The physician’s opinion
must be based on the facts of the case and the complete medical background of the employee, must
be one of reasonable medical certainty, and must include objective findings in support of its
conclusions.15
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed.16 To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.17
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish total disability
commencing May 8, 2016 due to the accepted employment injury.
The medical evidence received relevant to the claimed period of disability include reports
by Dr. Montella. In a May 13, 2016 examination note, he reported that appellant had not worked
since May 9, 2016. Dr. Montella completed a work restriction form, which indicated that she was
“unable to perform her job duties as a mail clerk due to her on[-]the[-]job injury.” In an
October 14, 2016 report, he explained that due to her work-related injury, any continuance of her
job duties or any lifting would aggravate her condition. He recommended that appellant be
excused from work pending further evaluation. Dr. Montella continued to treat her and provide

10

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).
11

G.T., Docket No. 18-1369 (issued March 13, 2019); Robert L. Kaaumoana, 54 ECAB 150 (2002).

12

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

13

J.A., Docket No. 18-1304 (issued May 1, 2019); William A. Archer, 55 ECAB 674 (2004).

14

B.W., Docket No. 19-0049 (issued April 25, 2019); Dean E. Pierce, 40 ECAB 1249 (1989).

15

C.B., Docket No. 18-0633 (issued November 16, 2018).

16

J.S., Docket No. 16-1014 (issued October 27, 2014); Sandra D. Pruitt, 57 ECAB 126 (2005).

17

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, 52 ECAB 291 (2001).

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examination reports and work-restriction forms dated May 13, 2016 to October 30, 2017, which
indicated that she should be off work until further evaluation.
The Board finds that Dr. Montella did insufficiently explain how appellant’s inability to
work was related to her accepted conditions caused by the May 8, 2016 employment injury.
Dr. Montella did not discuss objective findings to support her inability to work, nor did he explain
why she was unable to work her part-time limited-duty position as a result of her accepted lumbar
sprain injury.18 He did not identify the specific dates that appellant was disabled from work nor
did he explain how she was no longer able to work due to her accepted injury. As noted above,
the Board will not require OWCP to pay compensation for disability, in the absence of medical
evidence directly addressing the specific dates of disability for which compensation is claimed.19
As Dr. Montella did not provide medical rationale for his conclusion that appellant was unable to
work due to her May 8, 2016 employment injury, his reports are of diminished probative value
and are insufficient to establish her disability claim.20
Dr. Montella opined in a letter dated April 24, 2018 that appellant was “not medically
capable to return to work because of ongoing pain and difficulty and the medical care required to
treat [appellant’s] condition.” As he did not explain with sufficient rationale as to how her inability
to work was due to her accepted May 8, 2016 lumbar sprain injury, his opinion is of limited
probative value and thus this report is insufficient to establish the claimed period of disability.21
Likewise, Dr. Powell’s September 24 and October 30, 2018 examination notes also did not
attribute appellant’s inability to work to her accepted May 8, 2016 lumbar sprain injury. As he did
not expressly opine that she was unable to work due to her accepted May 8, 2016 employment
injury, his opinion is insufficient to establish her claim.22
As the medical evidence of record does not contain sufficient rationale to establish
disability commencing May 8, 2016, the Board finds that appellant has not met her burden of proof
to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration,
to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. §§ 10.605 through 10.607.

18

See M.C., Docket No. 16-1238 (issued January 26, 2017); see also Jaja K. Asaramo, 55 ECAB 200 (2004) (the
Board found that, for conditions not accepted or approved by OWCP as due to an employment injury, the claimant
bears the burden of proof to establish that the condition is causally related to the employment injury). M.M., Docket
No. 16-0541 (issued April 27, 2010).
19

Supra note 11.

20

G.R., Docket No. 15-1685 (issued June 14, 2016); S.B., Docket No. 13-1162 (issued December 12, 2013).

21

C.B., Docket No. 18-0040 (issued May 7, 2019).

22

T.L., Docket No. 18-0934 (issued May 8, 2019); J.H., Docket No. 14-0775 (issued July 14, 2014).

6

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA23 vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.24
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.25
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.26 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.27 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, it will deny the request for reconsideration without
reopening the case for review on the merits.28
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s request for reconsideration did not show that OWCP erroneously applied or
interpreted a specific point of law or advance a new and relevant legal argument not previously
considered by OWCP. Consequently, she was not entitled to a review of the merits based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant has not submitted relevant and pertinent new
evidence in support of her request for reconsideration under 20 C.F.R. § 10.606(b)(3). The Board
notes that the underlying issue in this case is whether she established entitlement to ongoing total
disability compensation. Appellant did not submit new evidence relevant to the issue of disability
entitlement with her November 8, 2018 request for reconsideration. Thus, she is not entitled to a
review of the merits of her claim based on the third above-noted requirement under section
10.606(b)(3).

23

Supra note 2.

24

5 U.S.C. § 8128(a).

25

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
26

Id. at § 10.607(a).

27

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

28

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

7

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.29
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
commencing May 8, 2016 due to her accepted May 8, 2016 employment injury. The Board also
finds that OWCP properly denied her request for reconsideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 30 and 1, 2018 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: August 13, 2019
Washington, DC

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

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

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

29
C.C., Docket No. 18-0316 (issued March 14, 2019); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630
(2006) (when an application for reconsideration does not meet at least one of the three requirements enumerated under
section 10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review on the
merits).

8


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

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

Docket No. 20-1643
Issued: March 30, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 15, 2020 appellant filed a timely appeal from an August 25, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a right upper
extremity condition causally related to the accepted May 2, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 25, 2020 decision, OWCP received additional evidence. 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 May 9, 2020 appellant, then a 62-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on May 2, 2020 she sustained an open dislocation of the right
elbow while in the performance of duty. She stopped work on that date and returned to full-duty
work on August 2, 2020.
Hospital records, dated May 2, 2020, indicate that appellant was diagnosed with open
posterior dislocation of the right elbow after being seen by a care team consisting of Dr. Sam V.
Sydney, an orthopedic surgeon, Dr. Hilary F. Schmitt, an emergency medicine specialist, and
Robert A. Loya, a physician assistant. Appellant was provided wound care, prescribed medication,
and scheduled for a follow-up appointment with orthopedics on May 13, 2020.
In a note dated May 13, 2020, Aaron Shakespeare, a physician assistant, recommended that
appellant remain off work for three months. In a duty status report (Form CA-17) of even date, he
diagnosed a right elbow fracture and dislocation due to being ejected from a truck on May 2, 2020.
In a July 9, 2020 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary and provided a questionnaire for her completion. OWCP afforded appellant
30 days to respond.
In a July 31, 2020 response to OWCP’s development questionnaire, appellant indicated
that she was delivering mail to a mounted mailbox when the end of her sleeve became caught in
the mailbox. She related that she did not realize she was stuck until she was pulling away from
the box, and then she unbuckled her seatbelt and fell to the ground.
In a June 30, 2020 attending physician’s report (Form CA-20), Dr. Sydney noted a date of
injury of May 2, 2020 and a diagnosis of recurrent dislocation of the right elbow and a displaced
fracture of the right humerus. He indicated that appellant was hospitalized for this condition May 2
through 3, 2020 and, during that time, underwent a closed reduction of the right elbow. Dr. Sydney
checked a box marked “No” indicating that her condition was not caused or aggravated by an
employment activity.
By decision dated August 25, 2020, OWCP accepted that the May 2, 2020 employment
incident occurred as alleged. However, it denied the claim, finding that the medical evidence of
record was insufficient to establish that the diagnosed right elbow condition was 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

3

Supra note 1.

2

limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish causal relationship between a claimed sp ecific
condition and an employment incident 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 factors
identified by the employee. 9
ANALYSIS
The Board finds that appellant has met her burden of proof to establish an open posterior
dislocation of the right elbow causally related to the accepted May 2, 2020 employment incident.
Hospital records, dated May 2, 2020, indicate that appellant was diagnosed with open
posterior dislocation of the right elbow after being seen by a care team consisting of Dr. Sydney,
Dr. Schmitt, and Mr. Loya. The records further indicate that she was provided wound care.
As the evidence of record establishes that appellant’s employment incident resulted in a
visible injury, the Board finds that she has met her burden of proof to establish an open dislocation

4

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

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

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

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

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

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

of the right elbow causally related to the accepted May 2, 2020 employment incident. 10 The case
will, therefore, be remanded for payment of medical expenses for appellant’s diagnosed open
dislocation of the right elbow, to be followed by a de novo decision regarding any attendant
disability.
CONCLUSION
The Board finds that appellant has established an open posterior dislocation of the right
elbow causally related to the accepted May 2, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 25, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 30, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c)
(January 2013). See also A.J., Docket No. 20-0484 (issued September 2, 2020); S.K., Docket No. 18-1411 (issued
July 22, 2020).

4


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

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Appearances:
Charles M. Cochrane, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0183
Issued: June 1, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 3, 2016 appellant, through counsel, filed a timely appeal from a July 6,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision, dated December 16, 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 this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On October 5, 2011 appellant, then a 58-year-old part-time flexible clerk, filed a
traumatic injury claim (Form CA-1) alleging that on October 1, 2011, while throwing a mail tray
into a truck, she fell from the truck dock and broke her right leg and ankle. OWCP accepted her
claim for bimalleolar open fracture of the right ankle and expanded her claim to include sprain of
the back, lumbar region, and traumatic arthropathy of the right ankle and foot. Appellant
stopped work on October 1, 2011 and worked intermittently thereafter.3
Appellant was treated by Dr. Joseph Galles, Jr., a Board-certified orthopedic surgeon, on
October 1, 2011, who diagnosed grade 2 open right ankle fracture dislocation. On October 1,
2011 Dr. Galles performed an authorized irrigation and debridement followed by an open
reduction internal fixation of grade 2 open right ankle fracture and diagnosed grade 2, open right
ankle fracture dislocation. In reports dated October 10 and 17, 2011, he noted that appellant was
doing remarkably well and placed her in a short leg fiberglass nonwalking cast.
On August 18, 2014 Dr. Thomas Klein, an osteopath, performed a left hip steroid
injection with fluoroscopic guidance and diagnosed left hip pain.
On December 26, 2014 appellant requested an expansion of her claim to include a
consequential injury to her left hip due to weakness and impairment caused by her accepted
work-related injury. She reported balance issues and other side effects from her October 1, 2011
work injury. Appellant had been diagnosed with a work-related back sprain and she developed
an altered gait pattern and left hip pain. She believed that the treatment records for her left hip
condition clearly stated the relationship to the initial work injury.
Evidence submitted by appellant included a September 2, 2014 report from Dr. Galles,
who treated her for left foot pain from a left third toe fracture. Dr. Galles noted that appellant
experienced trauma at work on June 29, 2014 and an x-ray of the left third toe revealed solid
healing of an oblique fracture. He diagnosed closed fracture of third toe. In an October 6, 2014
report, Dr. Galles saw appellant in follow up for right ankle pain. He noted that an
electromyogram (EMG) and nerve conduction velocity (NCV) testing revealed evidence of
pathology related to the posterior tibial nerve. Dr. Galles noted that appellant continued to
experience dysesthesias and paresthesia of the right foot with incapacitating pain. He diagnosed
tarsal tunnel syndrome and obesity. Appellant reported that she lost her balance as a result of
issues related to the right ankle which caused her to fall injuring her left foot. Dr. Galles opined
that the left toe injury would be related and secondary to her right ankle injury. He noted that he
had nothing further to offer appellant. On January 16, 2015 appellant presented and reported
severe pain with ambulatory activity. Dr. Galles noted that appellant failed extensive
3

On September 5, 2013 OWCP granted appellant a schedule award for six percent permanent impairment of the
right leg. In subsequent decisions, most recently on December 16, 2015, it denied her claim for an additional award.

2

conservative measures and x-rays of the right ankle demonstrated post-traumatic arthritic
changes of the tibiotalar joint with slight valgus alignment. He diagnosed osteoarthritis of ankle
and obesity.
In a letter dated February 3, 2015, OWCP advised appellant of the type of factual and
medical evidence needed to establish her claim for a consequential left hip condition and
requested that she submit such evidence, particularly requesting that she submit a reasoned
opinion addressing the relationship of her claimed left hip condition and the October 1, 2011
accepted work injury.
In a March 20, 2015 report, an OWCP medical adviser opined that the medical evidence
did not establish a left hip diagnosis causally related to the accepted right ankle injury.
On April 17, 2015 OWCP denied appellant’s claim for a consequential left hip injury as
the medical evidence of record did not demonstrate that the weakness or impairment caused by
the accepted work-related injury led to the aggravation of the original injury or to a new
consequential injury.
In an August 9, 2015 letter, appellant noted enclosing her latest medical report. An
accompanying August 4, 2015 report from Dr. Brian J. Schultz, a Board-certified orthopedist,
noted treating appellant for left hip and right ankle conditions. Dr. Schultz noted a history of
injury and diagnosed localized primary osteoarthritis of the left pelvis and trauma arthropathy at
the tibial joint of the right ankle. He opined that the findings in appellant’s ankle were the result
of her injury and her painful left hip was due to the chronic altered gait which occurred when
favoring the right ankle. Dr. Schultz recommended physical therapy and an intra-articular
cortisone injection.
In a letter dated August 31, 2015, OWCP acknowledged receipt of Dr. Schultz’s
August 4, 2015 medical report received after the final decision of April 17, 2015. It advised that
if appellant wished to dispute that decision she must follow the appeal rights which accompanied
it.
By letter dated February 6, 2016, appellant inquired about her claim for a schedule award
due to her right ankle condition. In a March 1, 2016 statement, she sought reimbursement for
compression stockings prescribed by Dr. Galles. In a March 2, 2016 letter, appellant advised
OWCP regarding her work restrictions. She noted that her right ankle had never recovered and
that she continued to have disability. In a March 5, 2016 statement, appellant indicated that on
February 1, 2016 Dr. Galles indicated that she was totally disabled and recommended she seek a
consultation with Dr. John E. Femino, a Board-certified orthopedic surgeon.
On an appeal request form dated March 1, 2016, but received by OWCP on April 22,
2016, appellant requested reconsideration of the April 17, 2015 decision. In an attached
statement, she noted seeking a second opinion from Dr. Schultz on the expansion of her claim to
include a left hip condition causally related to the original right ankle injury. Appellant reported
trouble walking and pain. She submitted an April 5, 2016 statement and requested an
explanation from OWCP for denying her claim for compensation for the period November 14,

3

2015 to March 4, 2016. Appellant requested a referral to Dr. Femino for surgical evaluation of
the right ankle.4
In an undated report, Dr. Galles indicated that appellant sustained a grade 2 open right
ankle fracture dislocation on October 11, 2011 while at work. Appellant underwent surgery for
irrigation and debridement followed by open reduction internal fixation of the grade 2, open right
ankle fracture. Dr. Galles noted that appellant was last seen on February 1, 2016 for right ankle
pain. He noted that x-rays from January 16, 2015 revealed post-traumatic arthritic changes of
the tibiotalar joint on the right side with slight valgus alignment as a result of the joint space.
Dr. Galles indicated that appellant’s initial open injury involved the tarsal tunnel area and her
symptoms were likely due to scar tissue formation which occurred around the tarsal tunnel and
could be a direct result of stretch injury to the tibial nerve. He noted that appellant developed
arthritis of the right ankle from her grade 2 open right ankle fracture.
OWCP also received a field nurse report dated May 25, 2016 and personnel documents.
In a letter dated May 31, 2016, appellant, through counsel, noted his continuing
representation of appellant. Counsel indicated that on March 1, 2016 appellant had filed a
request for reconsideration of the April 17, 2015 decision which denied expansion of her claim to
include a left hip condition.
Appellant filed several claims for compensation CA-7 forms for the period April 16 to
June 25, 2016.
In a statement dated June 7, 2016, appellant requested OWCP to reconsider expanding
her claim to include her left hip and referenced Dr. Schultz’ August 4, 2015 report. She
submitted a June 13, 2016 prescription note from Dr. Galles for compression hose. Appellant
also submitted a June 28, 2016 report from Dr. Femino who treated her for right ankle pain.
Dr. Femino noted that appellant was off work for five weeks and could return to work on
August 2, 2016 with restrictions.
By decision dated July 6, 2016, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.5 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of

4

In a letter dated May 25, 2016, OWCP instructed appellant to contact Dr. Femino directly for treatment and
submit a written request to change physicians.
5

5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

4

OWCP’s decision for which review is sought.6 The Board found that imposition of this one-year
filing limitation does not constitute an abuse of discretion.7
OWCP may not deny a reconsideration request solely because it was untimely filed.
When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake
a limited review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP must reopen the case for merit review.8
To demonstrate clear evidence of error, a claimant must submit evidence that is relevant
to the issue that was decided by OWCP9 is positive, precise, and explicit, and manifests on its
face that OWCP committed an error.10 The evidence must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must also
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to demonstrate clear evidence of error. It is not enough
merely to show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has demonstrated clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.11
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. As noted, an application for reconsideration must be
received within one year of the date of OWCP’s decision for which review is sought.12 As
appellant’s request for reconsideration was not received by OWCP until April 22, 2016, more
than one year after issuance of the last merit decision by OWCP on April 17, 2015, it was
untimely filed. Consequently, she must demonstrate clear evidence of error by OWCP in
denying her claim for compensation.
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP. In her reconsideration request, appellant disagreed with OWCP’s April 17, 2015
decision denying her request to expand her claim to include a left hip condition. On May 31,
6

20 C.F.R. § 10.607(a).

7

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

8

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2016) (the term “clear evidence of
error” is intended to represent a difficult standard).
9

Dean D. Beets, 43 ECAB 1153 (1992).

10

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

11

J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

12

20 C.F.R. § 10.607(a).

5

2016 appellant, through counsel, asserted that appellant had filed on March 1, 2016 a request for
reconsideration of the April 17, 2015 decision which denied expansion of her claim to include a
left hip condition. Other statements dated March 1 and June 7, 2016 referenced an August 4,
2015 report from Dr. Schultz which addressed her left hip and right ankle conditions. Appellant
requested OWCP to reconsider expanding her claim to include her left hip. The Board notes
that, while appellant addressed her disagreement with OWCP’s decision denying her claim for a
left hip condition, her general allegations do not raise a substantial question as to the correctness
of OWCP’s most recent merit decision.
Appellant also submitted medical evidence. She submitted an August 4, 2015 report from
Dr. Schultz who diagnosed localized primary osteoarthritis of the left pelvis and trauma
arthropathy at the tibial joint of the right ankle. Dr. Schultz opined that the findings in
appellant’s ankle were the result of her injury and her painful left hip was due to the chronic
altered gait which occurred when favoring the right ankle. While he provided support for causal
relationship, his report did not demonstrate clear evidence of error. The Board notes that clear
evidence of error is intended to represent a difficult standard. Evidence such as a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development, is not clear evidence of error.13 The
Board finds that this evidence does not rise to the level of clear evidence of error.
Appellant submitted a September 2, 2014 report from Dr. Galles who diagnosed closed
fracture of the third toe. Dr. Galles noted that appellant experienced trauma at work on June 29,
2014 and sustained an oblique fracture. In an October 6, 2014 report, he noted EMG and NCV
results revealed evidence of pathology related to posterior tibial nerve and he diagnosed tarsal
tunnel syndrome and obesity. Similarly, on January 16, 2015, Dr. Galles diagnosed osteoarthritis
of ankle and obesity. In an undated statement, he opined that appellant developed arthritis of the
right ankle from her grade 2 open right ankle fracture. Likewise, in a June 28, 2016 report,
Dr. Femino treated appellant for right ankle pain and noted that she was off work for five weeks.
On August 18, 2014 Dr. Klein performed a left hip steroid injection with fluoroscopic guidance
and diagnosed left hip pain. However, this evidence is insufficient to demonstrate clear evidence
of error as not only do the reports fail to address the underlying factual issue in this case, they
raise no error in OWCP’s decision.14
Thus, the Board finds that OWCP properly found that appellant’s March 1, 2016 request
for reconsideration, received on April 22, 2016, was untimely filed and failed to demonstrate
clear evidence of error.
On appeal appellant, through counsel, asserts that she timely submitted her request for
reconsideration of the April 17, 2015 decision. As noted above, a request for reconsideration
must be received within one year of the date of OWCP’s decision for which review is sought.15
13

D.G., 59 ECAB 455 (Docket No. 08-137, issued April 14, 2008).

14

See F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the
claim was denied is insufficient to demonstrate clear evidence of error). See also supra note 13.
15

20 C.F.R. § 10.607(a).

6

In this case, the reconsideration request was received by OWCP on April 22, 2016 and there is
no other evidence to substantiate that it was timely received. Appellant further asserts that the
medical evidence submitted with the request for reconsideration positively, precisely, and
explicitly shows that OWCP’s refusal to expand the accepted injuries to include the left hip was
clearly in error. However, as explained above, the medical evidence submitted is insufficient to
demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the July 6, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 1, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ottawa, IL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1887
Issued: July 16, 2018

Case Submitted on the Record

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

JURISDICTION
On September 6, 2017 appellant, through counsel, filed a timely appeal from an August 2,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.3

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
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its August 2, 2017 decision. The
Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. The Board is,
therefore, precluded from considering this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $39,466.53 for the period January 4, 2014 through July 28, 2015; and (2) whether
OWCP properly found that appellant was at fault in the creation of the overpayment of
compensation, thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
On August 23, 2013 appellant, then a 40-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that he injured his right shoulder while casing mail. He stopped
work on August 24, 2013.
On October 11, 2013 OWCP accepted the claim for right shoulder sprain, glenoid labrum
sprain and impingement. The acceptance letter informed appellant that full compensation was
available only if he was unable to perform the duties of his regular job and that he should notify
OWCP if he returned to work, or obtained new employment. Appellant was also advised that, if
he received compensation payments by electronic funds transfer (EFT), he should monitor his EFT
deposits carefully, at least every two weeks. If he worked during a period in which he received
compensation, he should notify OWCP in order that the overpayment could be collected.4
Effective June 1, 2014, OWCP placed appellant on the periodic (28-day cyclic)
compensation rolls. Appellant’s compensation was based on a pay rate of $650.00 per week and
OWCP paid him by EFT deposits. On June 13, 2014 he received two EFT payments for the period
January 4 to May 31, 2014.5
By letter dated June 12, 2014, OWCP explained how the compensation rate was
determined. It also informed appellant that, in order to minimize the possibility of an overpayment
of compensation, he should notify OWCP immediately when he returned to work. OWCP noted
that FECA provides that a partially disabled employee shall be paid compensation based on the
difference between the monthly pay and the employee’s wage-earning capacity, as determined by
the employee’s actual earnings or by OWCP.
The record reflects that, while appellant was receiving full-time wage-loss compensation
under FECA, he was working in the private sector at USF Holland, Inc., where from January 4,
2014 to July 28, 2015 he earned $1,134.62 per week. In a June 22, 2015 report, the U.S. Postal
Inspection Service found that appellant had not made any false statements regarding his outside
employment. It noted that he had listed USF Holland, Inc. as an employer on CA-7 forms filed in
2014 as well as on a January 10, 2015 Form EN1032.

4

Appellant was paid continuation of pay for the period August 24 to October 7, 2013. He was paid on the daily
rolls beginning October 8, 2013.
5

One of these payments was made for appellant’s child support obligation.

2

On July 29, 2015 appellant returned to full-duty work as a city carrier associate. OWCP
terminated his wage-loss compensation, effective that same date.
On December 29, 2016 OWCP issued a preliminary determination of an overpayment of
compensation finding that, for the period January 4, 2014 to July 28, 2015, appellant received
$39,466.53 in total disability compensation while he was also earning wages from his private
sector employment. It also made a preliminary determination that appellant was with fault in the
creation of the overpayment as he accepted payments that he knew or should have known were
incorrect. Appellant was advised that he could submit evidence challenging the fact, amount, or
finding of fault, and request waiver of recovery of the overpayment. OWCP also informed him
that he could submit additional evidence in writing or at a prerecoupment hearing within 30 days
of the date of the written notice of overpayment. It requested that appellant complete and return
the enclosed Form OWCP-20 overpayment recovery questionnaire within 30 days even if he was
not requesting waiver of recovery of the overpayment. Copies of the fiscal worksheets for the
period July 4, 2014 to July 28, 2015 were attached.
On January 17, 2017 appellant requested a prerecoupment telephone hearing before an
OWCP hearing representative.
In a January 22, 2017 OWCP-20 overpayment recovery questionnaire, appellant listed his
monthly income as $3,342.13 and $3,185.00 in monthly expenses comprised of mortgage or rent
($550.00), food ($400.00), clothing ($100.00), utilities ($800.00), other expenses ($1,100.00), and
credit cards monthly payments of $135.00 and $100.00. He also indicated that he had assets of
$100.00 in checking, $40.00 in savings, and $2,500.00 in other property (boat, car).6
During the hearing held on June 28, 2017, appellant testified that, as he was unable to return
to work for the employing establishment due to his injury, he sought outside employment as he
needed to earn income. He testified that the CA-7 forms he filed were returned by OWCP for
corrections. Appellant also testified that 20 percent of his compensation was deducted to pay child
support. He further testified that he used the compensation paid to pay credit bill balances.
Counsel argued that appellant should not be required to repay the overpayment debt as he had
relinquished a valuable right and relied on payment of compensation in order to pay his credit card
debts. Appellant was advised to submit copies of financial bills or statements documenting the
income, expenses, and assets listed on the Form OWCP-20. No additional evidence was received.
In an August 2, 2017 decision, the hearing representative finalized the preliminary
overpayment determination. He determined that appellant received an overpayment of
compensation in the amount of $39,466.53 for the period January 4, 2014 through July 28, 2015
at the same time he received earnings from other employment. OWCP noted that the wages
appellant earned at his other employment exceeded his weekly pay rate as a city carrier associate.
Thus, the hearing representative found that the entire amount of compensation paid in the subject
period represented an overpayment of compensation. He also found that appellant was with fault
in the creation of the overpayment as he accepted payments he knew or should have known were

6
In a February 15, 2017 decision, OWCP issued a schedule award for four percent right upper extremity
impairment, in the amount of $6,127.00.

3

incorrect. The hearing representative directed appellant to forward payment for the full amount of
$39,466.53 within 30 days as there was no basis for a repayment schedule.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.7 A claimant is not entitled to receive temporary total disability benefits and actual earnings
for the same time period.8 OWCP’s procedures provide that an overpayment of compensation is
created when a claimant returns to work, but continues to receive wage-loss compensation.9
Section 8129(a) of FECA provides that when an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations prescribed
by the Secretary of Labor by decreasing later payments to which the individual is entitled.10
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in the amount of $39,466.53 for
the period January 4, 2014 through July 28, 2015.
The evidence of record supports that appellant received wages inform his private sector
employment during the period January 4, 2014 through July 28, 2015 while also receiving FECA
wage-loss compensation for total disability. As previously noted, a claimant is not entitled to
receive temporary total disability benefits and actual earnings for the same time period.11
Therefore, OWCP properly determined that an overpayment of compensation was created.
OWCP properly calculated that the amount of the overpayment as $39,466.53, the amount
that appellant received in total disability compensation while also receiving wages for his private
sector employment. Appellant has not disputed the amount of overpayment. Accordingly, the
Board will affirm the fact and amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA12 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of this subchapter or would be against
7

5 U.S.C. § 8102.

8

L.S., 59 ECAB 350, 352-53 (2008).

9
B.H., Docket No. 09-0292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).
10

5 U.S.C. § 8129(a).

11

C.F., Docket No. 16-1718 (issued August 21, 2017); K.L., Docket No. 16-1490 (issued May 26, 2017).

12

5 U.S.C. § 8129(b).

4

equity and good conscience.” Section 10.433 of OWCP’s implementing regulations13 provides
that, in determining whether a claimant is at fault, it will consider all pertinent circumstances. An
individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be
incorrect.”
The Board has held that an employee who receives payments from OWCP in the form of
a direct deposit may not be at fault the first time incorrect funds are deposited into his or her
account, as the acceptance of the resulting overpayment lacks the requisite knowledge.14 The
Board has also held in cases involving a series of incorrect payments, where the requisite
knowledge is established by a letter or telephone call from OWCP, or simply with the passage of
time and a greater opportunity for discovery, the claimant will be at fault for accepting the
payments subsequently deposited.15
ANALYSIS -- ISSUE 2
Under OWCP’s regulations, waiver of the recovery of an overpayment may be considered
only if the individual to whom it was made was without fault in accepting or creating the
overpayment.16
The finding of fault in this case was based on the acceptance of payments that appellant
knew or should have known were incorrect. Although appellant had notified OWCP that he had
returned to work, the basis for finding of fault was not based on his failure to provide material
information. Rather, the issue is whether appellant accepted payments he knew or should have
known were incorrect.17
In the context of receiving compensation after returning to work, the Board precedent on
the issue of fault clearly establishes that the first payment received must be properly considered.
The Board has held that receiving an initial erroneous direct deposit payment following the
employee’s return to work does not necessarily create the requisite knowledge to find that a
13

20 C.F.R. § 10.433.

14
See Tammy Craven, 57 ECAB 689 (2006), Order Granting Petition for Reconsideration and Reaffirming Prior
Decision, Docket No. 05-0249 (issued July 24, 2006).
15

Id.

16

5 U.S.C. § 10.433(a).

17

See D.H., Docket No. 16-0128 (issued April 8, 2016).

5

claimant was at fault in the creation of the overpayment.18 Unlike the situation where a physical
check is sent to appellant with the period of compensation covered, at the time of the acceptance
of the first direct deposit after a return to work, a claimant does not know that an incorrect payment
would be deposited on that date.19 OWCP did not establish for the payment deposited on June 13,
2014 that appellant knew or should have known the payment was incorrect at the time of deposit.
A finding that appellant was without fault with respect to the June 13, 2014 direct deposit payment
does not establish that he was entitled to waiver of that portion of the overpayment and; therefore,
the case shall be remanded to OWCP. On return of the case record, OWCP should properly
consider the issue of waiver.
When appellant accepted the June 28, 2014 payment representing a full compensation
payment for total disability, and continued to accept payments deposited every 28 days, he clearly
should have known they were incorrect. Appellant had been advised in an October 11, 2013 letter
that he could not receive total disability compensation after returning to work, and that he should
monitor his account for EFT deposits every two weeks. When it became clear that OWCP was
continuing to deposit compensation for total disability while appellant worked in the private sector,
he was at fault for accepting such payments.20
Since appellant was at fault for accepting the June 28, 2014 direct deposit and subsequent
deposits through July 28, 2015, he is not entitled to waiver for this portion of the overpayment.
OWCP properly denied waiver with respect to the overpayment amount commencing with the
June 28, 2014 direct deposit.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$39,466.53 for the period January 4, 2014 through July 28, 2015 because he received wages from
private sector employment while also receiving total disability compensation. The Board further
finds that OWCP properly found appellant with fault in the creation of the overpayment with
regard to the direct deposits commencing June 28, 2014 and, therefore, precluded from waiver of
recovery of the overpayment for those periods. The evidence of record, however, is insufficient
to establish that appellant was with fault in the creation of the overpayment with respect to the
June 13, 2014 direct deposit. The case is therefore remanded for consideration of waiver as to that
portion of the overpayment.

18

Id.; see also R.R., Docket No. 15-1395 (issued December 11, 2015).

19

Id.

20

See M.B., Docket No. 10-0564 (issued December 16, 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the August 2, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed with respect to the fact and amount of overpayment.
As to the finding of fault in the creation of the overpayment, the decision is affirmed with respect
to the payments from June 28, 2014 through July 28, 2015 and set aside and remanded for further
action regarding waiver of the June 13, 2014 EFT payment.
Issued: July 16, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Brunswick, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1109
Issued: December 7, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 4, 2016 appellant, through counsel, filed a timely appeal from a January 7, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
medical benefits and wage-loss compensation effective July 15, 2014; and (2) whether appellant
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.

has met her burden of proof to establish any continuing disability or medical residuals on or after
July 15, 2014.
On appeal counsel argues that OWCP failed to meet its burden of proof to terminate
appellant’s benefits as there was an unresolved conflict of medical opinion evidence.
FACTUAL HISTORY
This case has previously been before the Board3 the facts and circumstances set forth the
Board’s prior decisions are incorporated herein by reference, the facts relevant to the present
appeal are set forth below. On March 7, 1993 appellant, then a 26-year-old mail handler, filed a
traumatic injury claim (Form CA-1) alleging that she jumped from the back of a trailer, missed
the loading dock, and landed on the concrete floor fracturing both ankles. OWCP accepted her
claim for bilateral ankle fractures on April 30, 1993 and authorized her surgeries.
On March 7, 1993 appellant underwent left ankle open reduction with internal fixation.
She returned to modified work on June 1, 1993. Appellant claimed a recurrence of disability
(Form CA-2) on November 17, 1993. On November 23, 1993 she underwent additional surgery
due to delayed union of the left ankle fibula with shift of mortis and failure of implant. Dr. Mark
Reiger, a Board-certified orthopedic surgeon, performed surgical removal of her implant, iliac
bone graft, open reduction, and internal fixation with reconstruction of the deltoid ligament.
Appellant returned to part-time light-duty work on June 6, 1994 and full duty on
March 28, 1996.
Appellant filed a claim for a schedule award (Form CA-7). OWCP granted her a
schedule award for nine percent permanent impairment of her left leg on May 8, 1998. On
April 20, 1999 it granted a schedule award for an additional one percent impairment of
appellant’s left lower extremity. By decision dated April 4, 2000, OWCP granted her a schedule
award for an additional 30 percent impairment of her left lower extremity. Through a decision
dated April 2, 2004, it determined that appellant had no more than 40 percent permanent
impairment of her left lower extremity for which she had received schedule awards.4 Appellant
appealed this decision to the Board and, by decision dated January 7, 2005,5 the Board affirmed
OWCP’s finding that she had no more than 40 percent permanent impairment of her left lower
extremity. The facts and circumstances as set forth in that case are adopted herein by reference.
On March 13, 2002 appellant sought treatment from Dr. David S. Levine, a Boardcertified orthopedic surgeon. He noted her history of injury and surgical treatment. Dr. Levine
reviewed appellant’s left ankle x-rays and found evidence of broken hardware consistent with
her surgeries. He found that her ankle joint itself clearly demonstrated some subtle effects of
trauma including subtle irregularities along the medial dome, the lateral dome, and the plafond.
Dr. Levine found that appellant’s subtalar joint also appeared to be narrowed. He suggested a
3

Docket No. 04-1877 (issued January 7, 2005).

4

On June 13, 2001 OWCP noted that it was attempting to reconstruct appellant’s file and requested all
correspondence and medical records from the employing establishment.
5

Supra note 3.

2

diagnosis of possible ankle joint arthritis and subtalar arthritis. Appellant underwent a left ankle
arthrogram on August 21, 2002. This test demonstrated mild degenerative changes in the
tibiotalar joint space.
Dr. Levine examined appellant on September 25, 2002 and reviewed x-rays, which he
found were consistent with mild peripheral osteoarthrosis. Appellant underwent a second left
ankle arthrogram on October 2, 2002. She underwent a third left ankle arthrogram with injection
with steroid and anesthetic on September 17, 2003. In a note dated October 29, 2003, Dr. Levine
reviewed appellant’s x-rays and found screws and plates along her distal fibula with early
changes of arthritis in both the ankle joint as well as the subtalar joint. On October 20, 2004 he
found that her x-rays demonstrated the presence of osteophytes and narrowing along the anterior
and posterior aspects of her ankle joint as well as a varus position of the hindfoot.
Appellant filed a recurrence (Form CA-2a) on April 22, 2010 and alleged that, due to her
March 7, 1993 employment injuries, she could only stand for one hour at a time. She stopped
work on that date. Appellant accepted a modified assignment on April 23, 2010. She filed
claims for compensation (Form CA-7) due to intermittent periods of disability. OWCP accepted
appellant’s claimed recurrence of disability on June 29, 2010 and authorized wage-loss
compensation through the supplemental rolls until September 13, 2010. Thereafter she returned
to light-duty work, but had intermittent periods of disability when light-duty work was not
available.
In notes dated May 10, July 13, and September 20, 2010, Dr. Sheldon S. Lin, a Boardcertified orthopedic surgeon, diagnosed left ankle arthritis following her surgery. He found that
appellant had 0 degrees of dorsiflexion and 30 degrees of plantar flexion. Dr. Lin reviewed her
computerized tomography scan of the left ankle findings mild osteoarthritis in the medial gutter
of the left ankle. He opined that this was latent effect of trauma status post open-reduction and
internal fixation.
On August 30, 2011 the employing establishment removed appellant’s light-duty
position. On September 30, 2011 OWCP accepted a recurrence of disability and was paid
compensation on the supplemental rolls until July 16, 2013 when she was placed on the periodic
rolls.
OWCP referred appellant for a second opinion evaluation with Dr. Mark Berman, a
Board-certified orthopedic surgeon on September 30, 2013. It provided him with a statement of
accepted facts, which included her treatment with Drs. Levine and Lin. In a report dated
October 7, 2013, Dr. Berman described appellant’s history of injury and medical history. He
noted that she was morbidly obese with chronic pain in her ankles bilaterally and difficulty
walking. Dr. Berman found chronic venous stasis ulcer changes in the bilateral lower extremities
and “massive edema bilaterally in the ankles.” He attributed appellant’s antalgic gait to her
obesity. Dr. Berman opined that her left ankle fracture had completely healed and that she had
reached maximum medical improvement. He concluded, “Clearly, at this time [appellant’s]
disability is related to her obesity and not to the fractures that she sustained.” Dr. Berman also
found that, based on review of Dr. Levine’s records, appellant had developed tibiotalar or
subtalar arthritis. He found that she was disabled due to her morbid obesity and unable to return
to work. Dr. Berman opined that, “[Appellant] would have to undergo a massive weight

3

reduction plan to see if her pain is relieved, but clearly there would be no way to specifically
state whether [her] arthritis at this point is a result of post[-]traumatic arthritis vs. arthritis as a
result of severe obesity.”
OWCP requested Dr. Lin to comment on Dr. Berman’s report by letter dated
November 12, 2013. Dr. Lin did not respond.
Because Dr. Berman could not explain whether appellant’s arthritis was post-traumatic or
a result of her severe obesity, on February 6, 2014 OWCP referred her for another second
opinion examination with Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon. In
Dr. Lakin’s February 24, 2014 report, he described her history of injury and continuing left ankle
pain especially with weather changes. He noted appellant’s medical treatment including both
surgeries and injections on the left. Dr. Lakin listed the medical evidence provided for his
review, including those of Dr. Levine and Dr. Lin. He reported that appellant had chronic
swelling in both ankles and found venous stasis changes in her lower extremities. Dr. Lakin
listed her right ankle range of motion as 5 degrees of dorsiflexion, 30 degrees of plantar flexion,
and less than 10 degrees of inversion and eversion. On the left appellant exhibited 0 to 5 degrees
of dorsiflexion, 0 to 30 degrees of plantar flexion, as well as eversion, and inversion of less than
10 degrees. Neither ankle had instability or osseous tenderness. Dr. Lakin found that appellant
had full motor strength in her ankles. He responded to OWCP’s questions and opined that she
had no disabling residuals of the trimalleolar fracture on the left or of the fractured medial
malleolus on the right. Dr. Lakin found that appellant did not require further medical treatment.
He determined that she was disabled due to obesity as she was 5’2” and weighed 360 pounds.
Dr. Lakin specified that appellant’s modified work abilities were not due to her accepted
employment injuries, but due to her morbid obesity.
On June 11, 2014 OWCP proposed to terminate appellant’s medical benefits and wageloss compensation based on Dr. Lakin’s report. It allowed her 30 days to respond. Counsel
responded on July 8, 2014 and asserted that Dr. Lakin had failed to provide medical reasoning in
support of his conclusion that appellant had no ongoing residuals of her accepted conditions. He
submitted a report dated July 5, 2014, from Dr. Gary L. Quartello, a podiatrist. Dr. Quartello
reported that he had treated appellant for years and noted that she had experienced post-traumatic
arthritis changes in her ankle. He noted, “I personally feel [appellant’s] situation is a
combination problem of arthritis, a certain amount of instability, and balance due to the resultant
skeletal formation post-trauma and her weight.”
In a decision dated July 15, 2014, OWCP terminated appellant’s medical benefits and
wage-loss compensation effective that date. It found that the weight of the medical evidence
rested with Dr. Lakin.
On July 21, 2014 counsel requested an oral hearing from OWCP’s Branch of Hearings
and Review. During the hearing held on February 17, 2015, appellant testified that in 1993 she
broke her left ankle and sustained a hairline fracture of her right. She described her two left
ankle surgeries with grafts and screws and subsequent left ankle treatment and current
symptoms. Appellant asserted that she had limited range of motion due to her hardware and
arthritis. She attributed her weight gain to her sedentary lifestyle due to her ankle injury.

4

By decision dated April 30, 2015, OWCP’s hearing representative found OWCP met its
burden of proof to terminate appellant’s wage-loss compensation and medical benefits effective
July 15, 2014. She found that Dr. Lakin’s report was entitled to the weight of the medical
evidence and established that appellant’s employment-related residuals and disability had ended.
Counsel requested reconsideration on October 14, 2015 and submitted pages 6, 7, and 8
of a report dated July 20, 2015 from Dr. Arthur Becan, an orthopedic surgeon, in support of this
request.
In a decision dated January 7, 2016, OWCP denied modification of the April 30, 2015
decision. It reviewed the three pages of Dr. Becan’s report and found that it was not sufficiently
well-reasoned to establish causal relationship between appellant’s accepted employment injury
and the alleged disabling conditions of bilateral ankle arthropathy.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proof to establish that disability has
ceased or lessened in order to justify termination or modification of compensation benefits.6
After it has determined that, an employee has disability causally related to his or her federal
employment, OWCP may not terminate compensation without establishing that the disability has
ceased or that it is no longer related to the employment.7 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability.8 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
medical benefits and wage-loss compensation effective July 15, 2014.
OWCP accepted appellant’s claim for bilateral ankle fracture and authorized two
surgeries on her left ankle. Appellant submitted medical evidence from Drs. Levine and Lu
supporting that she developed traumatic osteoarthritis in her left ankle as a result of her accepted
employment injuries. OWCP referred her to Dr. Berman for a second opinion evaluation on
October 7, 2013 regarding appellant’s ongoing disability and medical residuals. Dr. Berman
reviewed appellant’s medical history and performed a physical examination on October 7, 2013.
He expressly noted that there was no way for him to specifically opine whether her left ankle
arthritis was the result of post-traumatic arthritis due to her ankle fracture and surgeries, or
arthritis as a result of severe obesity.

6

Mohamed Yunis, 42 ECAB 325, 334 (1991).

7

Id.

8

Furman G. Peake, 41 ECAB 361, 364 (1990).

9

Id.

5

OWCP procedures provide that if a second opinion report is equivocal, lacks rationale or
fails to address the specified medical issues, the claims examiner should seek clarification or
further rationale for that physician.10 It is required to seek clarification from the second opinion
physician and request a supplemental report to clarify inadequacies in the initial report.11 Only if
the second opinion physician does not respond or does not provide a sufficient response after
being asked shoulder the claims examiner request scheduling with another physician.12
Following the receipt of Dr. Berman’s report, OWCP did not request a supplemental
report from Dr. Berman and did not further develop the issue of whether appellant’s arthritis was
caused or contributed to by her accepted employment injuries. The Board finds that OWCP
failed to properly develop the medical evidence in keeping with its procedures.
OWCP subsequently requested another second opinion report from Dr. Lakin regarding
appellant’s ongoing medical residuals and disability from work. Dr. Lakin determined in his
February 24, 2014 report, that her accepted employment conditions had resolved with no medical
residuals and no work-related disability. He did not address the findings of post-traumatic
arthritis in by Drs. Levine, Lu, and Berman, although he specifically mentioned reviewing these
reports as well as noting appellant’s complaints of increased pain in the left ankle with weather
changes. Based on this report from Dr. Lakin, OWCP terminated her medical compensation and
wage-loss benefits.
The Board finds that, due to OWCP’s failure to adequately develop the medical evidence
submitted by Dr. Berman, the initial second opinion physician, OWCP has not adequately
developed appellant’s claim and has not met its burden of proof to terminate appellant’s medical
benefits and wage-loss compensation. It is well established that proceedings under FECA are
not adversarial in nature and that while the claimant has the burden to establish entitlement to
compensation, OWCP shares responsibility in the development of the evidence. OWCP has an
obligation to see that justice is done.13 As it failed to follow its procedures to request a
supplemental report from Dr. Berman, OWCP cannot rely on Dr. Lakin’s second opinion report
to terminate appellant’s medical benefits and wage-loss compensation.14
The Board finds that OWCP has failed to meet its burden of proof to terminate
appellant’s medical benefits and wage-loss compensation effective July 15, 2014.

10

B.B., Docket No. 16-0734 (issued October 19, 2016); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Developing and Evaluating Medical Evidence, Chapter 2.810.9(j) (September 2010).
11

Id., see also Ayanle A. Hashi, 56 ECAB 234 (2004).

12

Supra note 10.

13

John J. Carlone, 41 ECAB 354, 358-60 (1989).

14

Supra note 10.

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CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
medical benefits and wage-loss compensation effective July 15, 2014.
ORDER
IT IS HEREBY ORDERED THAT the January 7, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 7, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7