United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Baltimore, MD, Employer
__________________________________________

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

Docket No. 09-647
Issued: October 6, 2009

Case Submitted on the Record

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

JURISDICTION
On January 6, 2009 appellant filed a timely appeal of the August 14 and December 18,
2008 merit decisions of the Office of Workers’ Compensation Programs, finding that she did not
sustain an injury while in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a left knee injury on
May 21, 2008, as alleged.
FACTUAL HISTORY
On May 22, 2008 appellant, then a 44-year-old nurse, filed a traumatic injury claim
alleging that on May 21, 2008 she experienced tenderness and swelling and sustained a sprain of
the left knee after running into a cart while helping a physician with a difficult intubation.

Reports dated June 1 to 19, 2008 from appellant’s physical therapists stated that she
sustained a contusion and sprain/strain of the left knee and addressed her treatment. In a
June 16, 2008 prescription and May 22, 2008 request for physical therapy, Dr. Kirtikant I. Desai,
an attending Board-certified internist, stated that appellant sustained a work-related left knee
injury. In reports dated May 22 to June 26, 2008, Dr. Desai stated that she sustained a left knee
strain. In reports dated June 5 and 12, 2008, he provided physical restrictions. In a June 12,
2008 disability certificate, Dr. Desai released appellant to return to work with restrictions. In
progress notes dated June 19 and 26, 2008, he provided a diagnosis of other specified sites of
aggravated sprains and strains, aggravated unspecified hypertension and acute generalized
anxiety disorder.
A May 22, 2008 report of a physician whose signature is illegible stated that appellant
sustained a left knee sprain.
A June 23, 2008 magnetic resonance imaging (MRI) scan report of Dr. Enrique E.
Sajor, II, a Board-certified radiologist, found no evidence of a meniscal tear or fracture. There
were degenerative changes involving the posterior horn of the medial meniscus. There was also
a small area of focal bone edema involving the distal diaphysis-metaphysis junction of the femur
of uncertain etiology that may have been related to the small area of focal bone bruise.
By letter dated July 10, 2008, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It requested additional factual and medical evidence,
including a rationalized medical report from an attending physician which described the history
of her current and prior work and nonwork-related injuries to similar parts of the body, a firm
diagnosis, results of examination and tests, symptoms, treatment provided, prognosis, period and
extent of disability and an opinion on whether the May 21, 2008 incident contributed to her
condition. Appellant was afforded 30 days to submit the requested evidence.
In reports dated July 3, 2008, Dr. Desai provided a history that appellant sustained left
knee trauma while at work on May 21, 2008. He indicated with an affirmative mark that her left
knee sprain was caused or aggravated by an employment activity. In a July 14, 2008 disability
certificate, Dr. Desai stated that appellant experienced left knee pain and anxiety and that she
was unable to work from July 3 to 14, 2008. From May 22 to July 24, 2008 he reiterated his
prior diagnoses of left knee sprain, other specified sites of aggravated sprains and strains,
aggravated unspecified hypertension and acute generalized anxiety disorder.
Treatment notes dated June 13 and 18, 2008 from appellant’s physical therapists
addressed the treatment of her left knee condition.
In a July 24, 2008 letter, appellant described the May 21, 2008 incident, stating that she
ran into a metal cart on which she hit her left knee. Medical treatment was delayed until the next
day when appellant could obtain the necessary paperwork for an evaluation in the employing
establishment’s health unit. Following this evaluation, she was examined by Dr. Desai and then
went home. Appellant put ice on her knee, elevated it and took pain medication.
In an undated referral slip and an August 7, 2008 report, Dr. Desai reiterated his prior
opinion that appellant sustained a work-related left knee sprain/strain.

2

By decision dated August 14, 2008, the Office denied appellant’s claim. It found the
evidence sufficient to establish that the May 21, 2008 incident occurred at the time, place and in
the manner alleged. However, the medical evidence was insufficient to establish an injury
causally related to the accepted employment incident.
On September 5, 2008 appellant requested a review of the written record by an Office
hearing representative. In prescriptions notes dated August 21 and 28, 2008 and a September 4,
2008 progress note, Dr. Francisco A. Ward, a Board-certified physiatrist, and Dr. Desai stated
that appellant sustained a bone contusion and medial meniscus tear of the left knee.
By decision dated December 18, 2008, an Office hearing representative affirmed the
August 14, 2008 decision. The medical evidence failed to establish that appellant sustained a left
knee injury causally related to the accepted May 21, 2008 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty 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 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. The medical evidence required to establish a
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is medical evidence, which includes a physician’s rationalized opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated 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.4 Neither the
1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Gary J. Watling, 52 ECAB 357 (2001).

4

Solomon Polen, 51 ECAB 341 (2000).

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fact that appellant’s condition became apparent during a period of employment nor her belief that
the condition was caused by her employment, is sufficient to establish a causal relationship.5
ANALYSIS
The Office accepted that appellant ran into a cart on May 21, 2008 while working as a
nurse at the employing establishment. The Board finds, however, that the medical evidence
submitted is insufficient to establish that her diagnosed left knee conditions were caused or
aggravated by the May 21, 2008 employment incident.
Dr. Desai’s June 16, 2008 prescription and May 22, 2008 request for physical therapy
stated that appellant sustained a work-related left knee injury. This evidence, however, is
insufficient to establish appellant’s claim. Dr. Desai did not provide a specific diagnosis of a left
knee condition and failed to discuss how any medical condition was caused or aggravated by the
accepted employment incident.6
Dr. Desai’s reports covering the period May 22 to August 7, 2008 and undated referral
slip stated that appellant sustained a left knee strain/sprain. In progress notes dated May 22 to
July 24, 2008, he stated that appellant suffered from other specified sites of aggravated sprains
and strains, aggravated unspecified hypertension and acute generalized anxiety disorder.
Dr. Desai’s and Dr. Ward’s August 21 and 28, 2008 prescriptions and progress note found that
appellant sustained a bone contusion and medial meniscus tear of the left knee. However,
neither Dr. Desai nor Dr. Ward addressed how the diagnosed conditions were caused or
contributed to by the accepted May 21, 2008 employment incident. They did not explain the
lack of confirmation for a medial meniscus tear as noted by Dr. Sajor’s June 23, 2008 MRI scan
which found no evidence of this condition.
In a July 3, 2008 report, Dr. Desai indicated with an affirmative mark that appellant’s left
knee sprain was caused or aggravated by the May 21, 2008 employment incident. His report is
insufficient to establish appellant’s claim as a report which only addresses causal relationship
with a checkmark without more by way of medical rationale explaining how the incident caused
the injury, is insufficient to establish causal relationship and is of diminished probative value.7
Dr. Desai did not provide any medical rationale explaining how or why appellant’s left knee
sprain was caused by the accepted employment incident.
Dr. Desai’s July 14, 2008 disability certificate stated that appellant suffered from left
knee pain and anxiety. He opined that she was unable to work from July 3 to 14, 2008. In a
June 12, 2008 disability certificate, Dr. Desai stated that appellant could return to work with
restrictions. Dr. Desai did not provide any medical rationale explaining how or why appellant’s
total disability for work was caused by the May 21, 2008 employment incident. The Board finds
that his disability certificates do not constitute probative medical evidence.
5

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

6

Daniel Deparini, 44 ECAB 657, 659 (1993).

7

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

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The reports and treatment notes of appellant’s physical therapists have no probative
medical value in establishing her claim. A physical therapist is not considered to be a physician
as defined under the Act.8
A May 22, 2008 report containing an illegible signature stated that appellant sustained a
left knee sprain. As this report lacks any indication that it was completed by a physician, it does
not constitute probative medical evidence.9 Moreover, the Board finds that there is insufficient
rationalized medical evidence of record to establish that appellant sustained a left knee injury
causally related to the accepted May 21, 2008 employment incident. Appellant did not meet her
burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a left knee injury
on May 21, 2008, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the December 18 and August 14, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 6, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8

5 U.S.C. § 8102(2). See also David P. Sawchuk, 57 ECAB 316 (2006).

9

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 12-881
Issued: June 15, 2012

Case Submitted on the Record

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

JURISDICTION
On March 31, 2012 appellant filed a timely appeal from a January 3, 2012 merit decision
of an Office of Workers’ Compensation Programs’ (OWCP) hearing representative who denied
authorization of a change of physician. 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 OWCP abused its discretion in denying appellant’s request to
change physicians for purposes of surgery.
FACTUAL HISTORY
OWCP accepted that on June 7, 2008 appellant, then a 50-year-old city letter carrier,
sustained a left shoulder injury in the performance of duty retrieving a parcel from the back of
1

5 U.S.C. § 8101 et seq.

his truck. He did not stop work. OWCP accepted appellant’s claim for disorder of the bursae
tendons and articular cartilage disorder of the left shoulder. On August 12, 2008 appellant
underwent left shoulder arthroscopy. On June 9, 2009 he requested his claim be accepted for a
right shoulder injury alleging that he injured his right shoulder rotator cuff during the
rehabilitation of his left shoulder. Appellant stopped work on March 13, 2009 and requested
disability compensation. On June 22, 2010 OWCP accepted the claim to include right rotator
cuff tear.
In a June 30, 2010 report, Dr. Brian C. Oliver, a Board-certified orthopedic surgeon,
stated that appellant suffered from bilateral recurrent rotator cuff tears in both shoulders and a
full thickness articular cartilage loss involving the glenoid of the left shoulder. He explained that
appellant continued to have aggravation of both shoulders and was unable to work as a letter
carrier. Dr. Oliver related that he discussed an attempt at complex reconstructive surgery
involving appellant’s right shoulder rotator cuff and shoulder arthroplasty.
In an October 6, 2010 report, Dr. Mark Frankle, a Board-certified orthopedic surgeon,
examined appellant for complaints for bilateral shoulder pain with the right worse than the left.
He reviewed appellant’s medical history and noted that a 2008 magnetic resonance imaging
(MRI) scan demonstrated a right rotator cuff tear. Examination of the right shoulder revealed
forward flexion motion to 150 degrees with maximum abduction to 150 degrees. Neer’s sign,
Hawkin’s sign, O’Brien’s, Speed’s and Yergason’s tests were negative. No atrophy or mild
subacromial crepitation was noted. Dr. Frankle also spoke with appellant about arthroscopic
repair of his rotator cuff and augmentation with graft jacket.
In a July 12, 2010 report, Dr. Frankle noted that the most recent MRI scan revealed a
large full thickness tear of the suprasinatous extending into the infraspinatus with significant
retraction near the level of the glenoid. He discussed the surgical treatment options with
appellant and recommended an arthroscopic attempt at partial repair with augmentation with
graft jacket.
In a November 4, 2010 statement, appellant related that Dr. Oliver felt that he could no
longer assist him and recommended that he see Dr. Frankle regarding a total reverse shoulder
operation. Because Dr. Frankle did not accept federal workers’ compensation cases, appellant
sought treatment under his own insurance. Dr. Frankle recommended an allograft patch
augmentation on appellant’s right shoulder. He explained that he had not yet performed one of
these operations, but had studied them recently and felt confident that he could perform the
procedure. Appellant explained that he did some research to find a physician who was more
familiar with the procedure and identified Dr. Taylor Brown, a Board-certified orthopedic
surgeon with a sports medicine subspecialty, at the Houston Bone and Joint Center who had
performed approximately 50 such operations.
On February 13, 2011 appellant stated his preference to have Dr. Stephen Snyder, a
Board-certified orthopedic surgeon, in California perform the surgery as the physician was
considered the “grandfather” of this specific procedure; but Dr. Snyder did not take federal
workers’ compensation cases. He related his attempts to contact several other physicians in
Florida that Dr. Snyder recommended but learned that they had never performed the surgery he
required. Although Dr. Frankle had taken a five-hour course with Dr. Snyder and felt confident

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that he could perform the arthroscopic tendon allograft augmentation procedure, appellant did
not want to be his first surgical attempt.
On February 25, 2011 appellant requested authorization to be treated by Dr. Taylor
Brown, a Board-certified orthopedic surgeon, in Texas. OWCP advised him that it could not
authorize a procedure that would be performed by a surgeon in Texas and requested that he
submit medical evidence to establish that the medical procedure was necessary.
In a March 1, 2011 narrative statement, appellant explained that Dr. Brown was very
familiar with the procedure and recommended surgery after reviewing appellant’s most recent
MRI scans and x-rays. He noted that Dr. Brown had performed more than 50 procedures as of
October 2010 and had a 75 percent success rate. Appellant submitted medical reports by
Dr. Frankle regarding his medical treatment.
In a letter dated April 6, 2011, OWCP denied authorization for a change of physician. It
explained that it was not the policy of OWCP to transfer medical supervision to a different state
unless there was compelling reason to do so and noted that the evidence failed to establish that a
specialist in his local area was unable to perform the desired medical procedure. OWCP stated
that appellant’s treating physician was authorized to refer him to another appropriate specialist in
his local area for evaluation.
On April 25, 2011 OWCP received an undated statement. Appellant reiterated his
preference that a surgeon with more experience in the procedure perform the arthroscopic tendon
allograft augmentation procedure. He explained that Dr. Brown had performed over 50 of these
procedures with 75 percent success and that he had not found a specialist in Florida with
sufficient experience in performing this procedure.
In an April 27, 2011 report, Dr. Brown stated that he was a Board-certified orthopedic
surgeon who practiced in Texas and specialized in sports medicine and arthroscopy of the knee,
shoulder and elbow. He reviewed appellant’s medical records and noted a rotator cuff tear
involving the supraspinatus and infraspinatus tendons after a previous rotator cuff repair.
Dr. Brown opined that appellant would benefit from an arthroscopic revision rotator cuff repair
with allograft patch augmentation, capsular release with lysis of adhesions and biceps tenodesis.
On June 1, 2011 OWCP referred appellant’s record to Dr. James Dyer, a district medical
adviser, regarding whether the proposed right shoulder surgery was warranted and whether the
surgery should be performed in Texas due to unavailability in Florida. Dr. Dyer concluded that
the proposed arthroscopic revision rotator cuff with allograft augmentation procedure was
medically warranted, but stated that the surgery did not need to be performed in Texas. He
explained that there were several orthopedic shoulder surgeons in Florida, particularly in Tampa
or Jacksonville, Florida who could perform the procedure with allograft augmentation. Dr. Dyer
opined that appellant should proceed with Dr. Frankle.
By decision dated June 8, 2011, OWCP authorized the right shoulder procedure, but
denied appellant’s request to have the surgery performed by Dr. Brown in Texas. It noted that
Dr. Dyer concluded that Dr. Frankle in Tampa, Florida was qualified to perform the required
surgery. OWCP further noted that it was not policy to transfer medical supervision unless there

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was a compelling reason to do so and pointed out that there was no evidence to demonstrate that
his current medical treatment was anything other than proper and adequate.
In a June 21, 2011 narrative statement, appellant disagreed with Dr. Dyer’s
recommendation that Dr. Frankle perform the surgery. He explained that Dr. Frankle was
inexperienced with the surgical procedure and did not accept federal workers’ compensation
claimants; therefore, he had to pay for Dr. Frankle’s services through his private insurance.
Appellant also resubmitted Dr. Brown’s April 27, 2011 letter.
On June 22, 2011 appellant requested an oral hearing which was held on
October 13, 2011. He stated that he had worked for the employing establishment as a city letter
carrier for 27½ years. Appellant described his employment duties and the June 7, 2008 injury.
He was initially treated by Dr. Oliver and referred to Dr. Frankle, who recommended the specific
right shoulder procedure. Dr. Frankle advised appellant that although he had never performed
this surgery, he had a five-hour course with Dr. Snyder, a pioneer of this surgery. He attempted
the procedure during that time but could not complete it. Appellant stated that he wanted a
surgeon with more experience, but he could not find a surgeon in Florida with experience in
performing this particular procedure. He explained that he found Dr. Brown in Texas through
Dr. Snyder’s office and noted that Dr. Brown had completed over 50 surgeries with a 75 percent
success rate.
In an October 25, 2011 narrative statement, appellant explained that he was not
comfortable having Dr. Frankle perform the right shoulder surgery because he did not have
enough experience. He reiterated that there were no surgeons with extensive experience in
performing this procedure in his local area and that Dr. Brown was the closest physician with the
best credentials regarding the procedure who also accepted federal workers’ compensation.
Appellant resubmitted various medical reports and treatment notes dated from October 6, 2010
to April 27, 2011.
By decision dated January 3, 2012, an OWCP hearing representative denied appellant’s
request to have the authorized right shoulder surgery performed by Dr. Brown in Texas. She
found that the evidence failed to demonstrate that the treatment he currently received was other
than proper and adequate or that the authorized surgery could not be performed in his local area.
LEGAL PRECEDENT
The payment of medical expenses incident to securing medical care is provided for under
section 8103 of FECA. The pertinent part provides that an employee may initially select a
physician to provide medical services, appliances and supplies, in accordance with such
regulations and instruction as the Secretary considers necessary.2
When the physician originally selected to provide treatment for a work-related injury
refers the employee to a specialist for further medical care, the employee need not consult
OWCP for approval. In all other instances, however, the employee must submit a written request
to OWCP with his reasons for desiring a change of physician. OWCP will approve the request if
2

Id. at § 8103(a).

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it determines that the reasons submitted are sufficient. Requests that are often approved include
those for transfer of care from a general practitioner to a physician, who specializes in treating
conditions like the work related one or the need for a new physician when an employee has
moved.3
Any transfer of medical care should be accomplished with due regard for professional
ethics and courtesy. No transfer or termination of treatment should be made unless it is in the
best interest of the claimant and the government. Employees who want to change attending
physicians must explain their reasons in writing and OWCP must review all such requests.
OWCP may approve a change when: the original treating physician refers the claimant to
another physician for further treatment; the claimant wants to change from the care of a general
practitioner to that of a specialist in the appropriate field or from the care of one specialist to
another in the appropriate field; or the claimant moves more than 50 miles from the original
physician (since OWCP has determined that a reasonable distance of travel is up to a roundtrip
distance of 100 miles). It must use discretion in cases where other reasons are presented.4
The Board has recognized that OWCP, acting as the delegated representative of the
Secretary of Labor, has broad discretion in approving services provided under FECA. OWCP
has the general objective of ensuring that an employee recovers from her injury to the fullest
extent possible in the shortest amount of time. It, therefore, has broad administrative discretion
in choosing means to achieve this goal. The only limitation on OWCP’s authority is that of
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to show merely that the evidence could be
construed to produce a contrary conclusion.5
ANALYSIS
On March 1, 2011 appellant submitted a written request to change physician for his
authorized right shoulder surgery. He explained that his treating physician, Dr. Oliver, declined
to perform the procedure and that he had selected Dr. Brown to perform the procedure based
upon his experience and expertise. OWCP denied his request. The Board finds that OWCP did
not abuse its discretion in denying that request.
Appellant’s treating physician referred appellant to Dr. Frankle, who recommended that
appellant undergo an arthroscopic attempt at partial repair with augmentation with graft jacket.
Appellant explained that he was uncomfortable with Dr. Frankle performing the surgery because
he had not previously performed the procedure and appellant did not want to be his first attempt
at the procedure. He also noted that Dr. Frankle did not accept OWCP cases and, therefore, he
had to pay Dr. Frankle with his private insurance. Appellant related that the closest physician he
3

20 C.F.R. § 10.316.

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter
3.300.5.c (February 2012).
5

Daniel J. Perea, 42 ECAB 221 (1990).

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found with experience performing an arthroscopic revision rotator cuff with allograft
augmentation procedure was Dr. Brown in Texas. Although OWCP authorized the right
shoulder surgery, it denied appellant’s request to have the surgery performed by Dr. Brown in
Texas. While appellant’s concern about Dr. Frankle’s inexperience with this particular
procedure has some merit, as does his concern that Dr. Frankle did not accept OWCP claimants,
Dr. Dyer concluded that there were several orthopedic surgeons in Florida, particularly in Tampa
or Jacksonville, who could perform the procedure. The Board finds that the January 4, 2012
decision of the hearing representative did not preclude appellant from selecting another physician
in Florida to perform the authorized procedure.
The Board finds that OWCP did not abuse its discretion by denying appellant’s request
that Dr. Brown be authorized to perform his surgery. Dr. Brown’s practice is located in Houston,
Texas, which is some 980 miles away from Tampa, Florida. Therefore, a roundtrip for surgery
would be 1,960 miles, which far exceeds the 100 mile roundtrip radius that OWCP has found to
be reasonable.6 The Board finds that this is an unnecessary distance to travel, especially since
Dr. Dyer found that several orthopedic surgeons in the Tampa and Jacksonville, Florida area who
were capable of performing this particular surgery.7 In a similar case,8 appellant requested
authorization for medical treatment in New York, even though he lived in Florida. The Board
found that the fact that some physicians would not accept workers’ compensation cases or the
fact that he did not feel comfortable with other physicians, were not sufficient reasons to
establish that returning to New York for medical treatment was reasonable and necessary.
The Board finds that OWCP properly exercised its discretion in denying authorization for
a change of physician to perform appellant’s right shoulder surgery. There is no proof of
manifest error, clearly unreasonable judgment or illogical action. Appellant failed to submit any
evidence or explanation to demonstrate that OWCP’s decision to deny the change in physicians
was unreasonable. The Board finds that OWCP did not abuse its discretion by refusing to
authorize Dr. Brown to perform appellant’s right shoulder surgery.
CONCLUSION
The Board finds that OWCP properly exercised its discretion in denying authorization for
a change of physician to perform appellant’s right shoulder surgery.

6

Supra note 4.

7

See D.L., Docket No. 10-318 (issued September 8, 2010).

8

A.O., Docket No. 08-850 (issued January 28, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the January 3, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 15, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Memphis, TN,
Employer
__________________________________________

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

Docket No. 10-2212
Issued: June 2, 2011

Case Submitted on the Record

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

JURISDICTION
On August 30, 2010 appellant filed a timely appeal from an April 19, 2010 merit decision
of the Office of Workers’ Compensation Programs denying his traumatic injury claim. Pursuant
to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. The Board also has jurisdiction to review the Office
hearing representative’s August 19, 2010 nonmerit decision finding that appellant abandoned his
request for a hearing.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an injury in the performance of duty on July 20, 2009; and (2) whether appellant
abandoned his request for an oral hearing before an Office hearing representative.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 20, 2009 appellant, then a 49-year-old deckhand, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a back injury on that same date when he got up to answer
the telephone and tripped over a table and hurt his back. He informed the employing
establishment on that same date. The employing establishment controverted the claim asserting
that appellant was not on duty when he injured himself and had signed a quartering agreement
which stated that the government was not responsible for any personal injuries that occurred
during nonwork hours. A July 21, 2009 witness statement from Fred Allen reported that
appellant was sitting down in the lobby and tried to get up and fell.
By letter dated March 8, 2010, the Office requested additional factual and medical
evidence from appellant. By letter dated March 31, 2010, it requested he provide an updated
telephone number for his file.
In an undated statement, appellant reported that he had not worked since July 20, 2009
due to a back injury at work and was placed on disability on September 9, 2009.
In a July 23, 2009 medical report, Dr. Rajagopal Girijashanker, Board-certified in internal
medicine at the Veterans Affairs Medical Center, reported that appellant was complaining of low
back pain after a recent fall at work when he was standing on some stairs and tripped on
Monday, July 20, 2009. She noted that his pain was in his lower back with radiation into the left
hip and leg. Upon physical examination of the spine, Dr. Girijashanker reported that there was
tenderness over the L3-4 vertebrae and in the left paraspinal region. She also stated that the
L-spine film from July 21, 2009 was negative for an acute problem and early degenerative
arthritis was present.
In an undated narrative statement, appellant reported that on July 20, 2009 he was storing
items under the lobby stairway when he tripped over a folding table and fell into chairs and
buckets, hitting his head on the wall. He stated that he was sore and that the left side of his back
felt numb with a sharp pain so he went to the hospital the following day.
By decision dated April 19, 2010, the Office denied appellant’s claim on the grounds that
there was no medical evidence that provided a diagnosis which could be connected to the
July 20, 2009 employment incident. It specifically noted that “low back pain” is not considered
a diagnosis. The Office did find, however, that the July 20, 2009 incident occurred as alleged.
On April 27, 2010 appellant requested an oral hearing by telephone before an Office
hearing representative.
By letter dated May 10, 2010, the Office provided appellant with information concerning
hearing laws and procedures. By letter dated June 24, 2010, it notified him that his hearing
would be held on August 5, 2010 at 10:45 a.m. eastern time. The Office provided appellant with
a toll free number to call at that time to be connected to the Office hearing representative and
court reporter.
By decision dated August 19, 2010, the Office hearing representative found that appellant
had abandoned his request for an oral hearing. The hearing representative noted that he received
2

written notice 30 days in advance of the hearing but failed to appeal. The Office representative
also found no evidence that appellant contacted the Office either prior to or subsequent to the
scheduled hearing to explain his failure to appear.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Act 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 the Act; 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 are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.5 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. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. 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 -- ISSUE 1
The Office found that the incident occurred as alleged on July 20, 2009. The issue
therefore is whether appellant has submitted sufficient medical evidence to establish that the
2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

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

4

Elaine Pendleton, supra note 2 at 1143.

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

3

employment incident caused a back injury. The Board finds that he did not submit sufficient
medical evidence to support that he sustained a back injury causally related to the July 20, 2009
employment incident.7 The medical evidence is deficient on two grounds: first, it fails to
provide a firm diagnosis; and second, there is no narrative opinion on causal relationship
between a diagnosed condition and the employment incident.
In a July 23, 2009 medical report, Dr. Girijashanker reported that appellant was
complaining of low back pain after a recent fall at work when he was standing on stairs and
tripped. Upon physical examination, she reported that there was tenderness over the L3-4
vertebrae and in the left paraspinal region. Dr. Girijashanker stated that the L-spine film from
July 21, 2009 was negative for an acute problem and opined that early degenerative arthritis was
present. Her medical report fails to name a specific injury related to the accepted employment
incident. Identifying degenerative arthritis does not provide support for a traumatic injury from
the July 20, 2009 employment incident. Further, appellant’s complaint of low back pain is a
description of a symptom rather than a clear diagnosis of the medical condition.8 This evidence
is insufficient to establish his claim.
Medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.9 The opinion of a
physician supporting causal relationship must rest on a complete factual and medical background
supported by affirmative evidence, address the specific factual and medical evidence of record
and provide medical rationale explaining the nature of the relationship between the diagnosed
condition and the established incident or factor of employment.10 Thus, Dr. Girijashanker’s
medical report is insufficient to establish appellant’s burden of proof.
Appellant himself has alleged that the July 20, 2009 employment incident caused his
injury. His statements, however, do not constitute the medical evidence necessary to establish
causal relationship. In the instant case, the record is without rationalized medical evidence
establishing a causal relationship between the July 20, 2009 employment incident and appellant’s
alleged back injury. Thus, appellant has failed to establish his burden of proof.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides the right to a hearing before an Office hearing
representative:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is

7

See Robert Broome, 55 ECAB 339 (2004).

8

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. C.F.,
Docket No. 08-1102 (issued October 10, 2008).
9

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

10

See Lee R. Haywood, 48 ECAB 145 (1996).

4

entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”11
Chapter 2.1601.6.e(1) of the Office’s procedure manual explains when an employee is
considered to have abandoned his hearing request:
“A hearing can be considered abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not
requested a postponement; the claimant has failed to appear at a scheduled
hearing; and the claimant has failed to provide any notification for such failure
within 10 days of the scheduled date of the hearing.
“Under these circumstances, H&R [Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the DO [district Office].”12
ANALYSIS -- ISSUE 2
Following the Office’s April 19, 2010 decision denying his claim for compensation,
appellant requested an oral hearing before an Office hearing representative. On June 24, 2010
the Office notified him that his telephone hearing was scheduled for August 5, 2010 at 10:45
a.m. eastern time. It provided appellant with a toll free number and pass code to call in at the
time of the hearing. Appellant did not request a postponement, failed to appear at the scheduled
hearing and failed to provide any notification for such failure within 10 days of the scheduled
date of the hearing. As all three conditions for abandonment are met, the Board finds that he
abandoned his request for an oral hearing. The Board will therefore affirm the Office hearing
representative’s August 19, 2010 decision.
Appellant may submit additional evidence, together with a formal written request for
reconsideration, to the Office within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a).
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a back injury in the performance of duty on July 20, 2009. The Board also finds that
he abandoned his request for an oral hearing before an Office hearing representative on
August 5, 2010.

11

5 U.S.C. § 8124(b)(1).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6.e(1) (January 1999).

5

ORDER
IT IS HEREBY ORDERED THAT the August 19 and April 19, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 2, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
MEDICAL COMMAND STATIONS,
San Diego, CA, Employer
__________________________________________

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

Docket No. 07-132
Issued: April 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 18, 2006 appellant filed a timely appeal from the October 4, 2006 decision of
the Office of Workers’ Compensation Programs terminating her wage-loss compensation on the
grounds that she refused an offer of suitable work. Pursuant to 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 the Office properly terminated appellant’s compensation benefits
effective September 15, 2006 on the grounds that she refused an offer of suitable work under
5 U.S.C. § 8106(c).
FACTUAL HISTORY
On April 12, 2000 appellant, then a 61-year-old accounting technician, filed an
occupational disease claim, Form CA-2, alleging that her diagnosed carpal tunnel syndrome was
caused by her computer, filing and typing duties. On June 20, 2000 the Office accepted her

claim for carpal tunnel syndrome in both hands. Appellant underwent a carpal tunnel release in
her right hand on August 23, 2000 and in her left hand on November 1, 2000. She retired
voluntarily on December 31, 2000.
On November 12, 2001 Dr. Arnold Markman, a Board-certified occupational medicine
practitioner, examined appellant at the request of the Office to determine the extent of her
disability. He found that she was not totally disabled, but had permanent partial disability.
Dr. Markman indicated that appellant was precluded from prolonged or repetitive fingering,
gripping and grasping and lifting over five pounds. He stated that she could answer telephones
with a headset and minimal message taking.1
By letter dated April 15, 2002, the Office informed appellant that she was required to
participate in a vocational rehabilitation program with the goal of returning her to suitable
employment. Appellant worked with rehabilitation counselor Deborah Raphael from May to
December 2002. Ms. Raphael was doubtful of her successful reemployment because of her age,
medical problems, motivation level, vocational skills, educational background and the labor
market in San Diego. In her final vocational rehabilitation report, dated January 20, 2003,
Ms. Raphael recommended that appellant’s rehabilitation case be closed because her medical
condition and the industrial limitations made her unemployable.
In February 2003, appellant moved from San Diego, California to Moline, Illinois.
By letter dated March 15, 2004, the Office referred appellant to a vocational
rehabilitation specialist in Illinois with the goal of returning her to employment. The specialist,
Debbie Girard, arranged for an examination by Dr. Edward Moody, a Board-certified
occupational medicine practitioner, to determine her ability to return to work.
On April 7, 2004 Dr. Moody conducted a physical examination of appellant and reviewed
her medical record. In a report dated April 16, 2004, he opined that the symptoms in her hands
were not “wholly attributable to failed carpal tunnel releases.” Based on the distribution of the
pain and appellant’s medical history, Dr. Moody stated that diabetic neuropathy, osteoarthritis or
arthritis could be contributing factors to appellant’s symptoms. He indicated that she might have
osteoarthritis in her spine, which could lead to cervical nerve root irritation. Dr. Moody
recommended several diagnostic examinations to establish the cause of appellant’s hand pain and
a functional capacity evaluation to gauge her work capacity.
On June 15, 2004 appellant underwent a motor and sensory nerve study of her upper
extremities. The test demonstrated nerve slowing in both arms and ulnar nerve entrapment at the
left elbow, but no recurrent nerve entrapment in the carpal tunnels. Dr. Moody interpreted the
results as evidence of peripheral neuropathy related to appellant’s diabetes. A June 18, 2006 xray of appellant’s cervical spine showed advanced degenerative disc disease at the C5-6 level.

1

Dr. Markman reiterated this opinion in a report dated April 19, 2002: “I remain of the opinion that [appellant]
can still perform some useful work with regards to her hands. She is given a permanent preclusion from [sic]
minimal use of both hands, no prolonged fingering, gripping or grasping, no lifting over five pounds. If [appellant]
answers a telephone, she needs a headset.”

2

On July 14 and 15, 2004 appellant underwent a modified functional capacity evaluation.2
Greg Monson, the physical therapist, who conducted the evaluation, reported that appellant
demonstrated a high level of disability. He also noted some discrepancies in appellant’s effort
during testing and indicated that, as a result, the evaluation outcomes were likely conservative.
Mr. Monson stated that appellant was “probably capable of working at least on a part-time basis
at the sedentary level.”
Dr. Moody reviewed the functional capacity examination conducted by Mr. Monson on
July 30, 2004 and found that it was “probably a fairly accurate” representation of appellant’s
work abilities. He stated that appellant was “probably” fit for work at a sedentary level and
could “probably” work full time provided that not much handwork was required. Dr. Moody
noted weight limits on her ability to lift, carry, pull and push. He stated that appellant could
occasionally bend, but could not squat, kneel, crawl or climb a ladder. Dr. Moody also stated
that she tolerated sitting better than standing, but needed to change positions occasionally. He
found that no additional follow-up was needed.
On August 17, 2004 Dr. Moody completed a work capacity evaluation form for appellant
with the same restrictions found in his July 30, 2004 report.3 Additionally, he noted that she
could type on a keyboard for brief, intermittent periods and could walk, stand and reach
occasionally. Dr. Moody indicated that by “occasionally” he meant 3 to 33 percent of the time.
On October 19, 2004 Ms. Girard submitted her final vocational rehabilitation report to
the Office, along with the results of a labor market survey of Moline, Illinois. She indicated that
she was closing appellant’s file at the request of the Office.
On April 17, 2006 the employing establishment offered appellant work as a part-time
light-duty clerk at the San Diego Naval Medical Center. The medical limitations of the job were
based on Dr. Moody’s July 30, 2004 report. The position required four hours of work per day
doing intermittent and nonprolonged sitting, walking, standing bending, simple grasping and fine
manipulation. The position required the ability to intermittently lift 5 pounds from the floor,
carry 10 pounds and push or pull 10 pounds. The employing establishment noted that it had no
positions available in or around Moline, Illinois.
On April 23, 2006 appellant declined the job offer, citing her inability to relocate to San
Diego and her inability to perform the duties of the job in the provided description.
On May 12, 2006 the Office informed appellant that the light-duty clerk position offered
by the employing establishment on April 17, 2006 was suitable in accordance with the medical
restrictions set by Dr. Moody. It confirmed that the position was still available for acceptance.
The Office stated that, within 30 days, appellant must either accept the position or provide a
written explanation of her reasons for declining it. It explained that her compensation would be
2

The Board notes that Ms. Girard, the vocational rehabilitation specialist, found the results of the examination to
be incomplete, especially as related to the number of hours appellant could work. She sought to have the report
supplemented, but this never occurred.
3

Dr. Moody reissued his July 30, 2004 report on August 18, 2004.

3

terminated if she declined the position without justification. Appellant did not respond to the
Office’s letter within the allotted time.
By letter dated June 16, 2006, the Office informed appellant that the reasons for declining
the position that she had given to the employing establishment were not valid. It provided her 15
days to accept the position without penalty and informed her that no further reason for refusal
would be accepted.
Appellant telephoned the Office on June 21, 2006 and stated that she was unable to
perform the job duties because she had more medical conditions than those listed in Dr. Moody’s
report. The Office informed her that she would have to submit written evidence of these medical
conditions. The record indicates that new medical evidence was never sent. Appellant did not
submit the evidence.
By decision dated October 4, 2006, the Office terminated appellant’s compensation
benefits effective September 15, 2006 for failure to accept suitable employment.4 The Office
found that she had provided no valid reason for her failure to accept suitable employment. It also
found that Dr. Moody’s July 30, 2004 report was well rationalized, thorough and unequivocal.
LEGAL PRECEDENT
The Office has authority under section 8106(c)(2) of the Federal Employees’
Compensation Act to terminate compensation for any partially disabled employee who refuses or
neglects suitable work when it is offered.5 The Board has recognized that section 8106(c) serves
as a penalty provision as it may bar an employee’s entitlement to future compensation and, for
this reason, will be narrowly construed.6 Before compensation can be terminated the Office has
the burden of demonstrating that the employee can work, setting forth the specific restrictions, if
any, on the employee’s ability to work, and has the burden of establishing that a position has
been offered within the employee’s work restrictions, setting forth the specific job requirements
of the position. In other words, to justify termination of compensation under 5 U.S.C.
§ 8106(c)(2), the Office has the burden of showing that the work offered to and refused by
appellant was suitable.7
Office regulations provide that in determining what constitutes “suitable work” for a
particular disabled employee, the Office should consider the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.8 It is well
4

The decision was initially sent on September 15, 2006, but because the appeal rights were mistakenly forgotten
the decision was resent on October 4, 2006.
5

5 U.S.C. §§ 8101-8193, 8106.

6

Stephen A. Pasquale, 57 ECAB ___ (Docket No. 05-614, issued February 8, 2006).

7

M.L., 57 ECAB ___ (Docket No. 06-136, issued September 25, 2006).

8

20 C.F.R. § 10.500(b).

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established that the Office must consider preexisting and subsequently acquired conditions in the
evaluation of suitability of an offered position.9 The issue of whether an employee has the
physical ability to perform a modified position offered by the employing establishment is
primarily a medical question that must be resolved by the medical evidence.10
ANALYSIS
On May 12, 2006 the Office informed appellant that the part-time light-duty job offered
by the employing establishment constituted suitable work. The Office found that the position
was commensurate with the medical restrictions set forth in the July 30, 2004 report of
Dr. Moody, a Board-certified occupational medicine practitioner. The Board finds that the
Office improperly relied on Dr. Moody’s opinion when determining that the position offered by
the employing establishment constituted suitable employment.
Appellant underwent a functional capacity evaluation on July 14 and 15, 2004.
Dr. Moody reviewed this evaluation on July 30, 2004 and found that it was “probably a fairly
accurate” representation of her work abilities. He stated that she was “probably” fit for work at a
sedentary level and that appellant could “probably” work full time provided that not much
handwork was required. Dr. Moody also noted the specific weight and activity limits found in
the functional capacity evaluation.
The Board finds that Dr. Moody’s report was not a reasonably certain medical opinion
and, therefore, did not form a valid basis for the work suitability determination. Though he
provided some concrete physical restrictions, Dr. Moody’s interpretation of their impacted on
appellant’s level of disability was vague. Dr. Moody stated that the functional capacity
evaluation was “probably” “fairly accurate” and that appellant could “probably” work part time
or full time. The Board has held that medical opinion evidence such as this, which is couched in
speculative language, is of diminished probative value.11 The Board, therefore, finds that the
Office improperly relied on Dr. Moody’s 2004 report because of its speculative nature.
The Office is required to take into consideration an employee’s current physical
limitations when determining the suitability of a position. For this reason, the Board has held
that when determining whether a given position is medically suitable for a disabled employee,
the Office is required to use a reasonably current medical evaluation.12 The Board has also held
that the passage of time lessens the relevance of functional capacity evaluations.13 Dr. Moody’s
9

Richard P. Cortes, 56 ECAB ___ (Docket No. 04-1561, issued December 21, 2004).

10

Id.; Bryant F. Blackmon, 56 ECAB ___ (Docket No. 04-564, issued September 23, 2005).

11

Kathy A. Kelley, 55 ECAB 206, 211 (2004).

12

Carl C. Green, Jr., 47 ECAB 737 (1996) (six-month-old medical reports are reasonably current for purposes of
wage earning capacity determination); Cf. Keith Hanselman, 42 ECAB 680 (1991) (two-year-old medical report and
year-old work restriction evaluation form were not reasonably current for wage-earning capacity determination);
Anthony Pestana, 39 ECAB 980 (1988) (three-year-old medical evaluation is not reasonably current for wageearning capacity determination).
13

Ellen G. Trimmer, 32 ECAB 1878, 1882 (1981) (two-year old work tolerance limitation report was outdated).

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report, and the functional capacity evaluation on which it was based, was nearly two years old at
the time the Office used it to determine the suitability of the offered position. In similar cases,
the Board held that medical opinions that were nearly two years old were not reasonably
current.14 The Office also notes that appellant’s record demonstrated that she had a history of
medical conditions, including degenerative disc disease, osteoarthritis, diabetes and diabetic
neuropathy that were likely to deteriorate over time. Because of the likelihood that her condition
had changed since August 2004, the Office did not reasonably rely on Dr. Moody’s reports to
determine appellant’s current physical limitations in May 2006. The Board finds that the
medical evaluation relied on by the Office was not “reasonably current.”
The Board finds that the Office did not establish the suitability of the offered position
because it relied on Dr. Moody’s opinion which was speculative and not reasonably current.
CONCLUSION
The Board finds that the Office did not properly terminate appellant’s compensation
benefits effective September 15, 2006 on the grounds that she refused an offer of suitable work
under 5 U.S.C. § 8106(c).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 4, 2006 is reversed.
Issued: April 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
14

Keith Hanselman, supra note 12; Ellen G. Trimmer, supra note 13.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 12-1227
Issued: December 20, 2012

Case Submitted on the Record

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

JURISDICTION
On May 4, 2012 appellant filed a timely appeal from a March 6, 2012 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.3

1

The last merit decision in this case was the January 6, 2011 decision, which denied his traumatic injury claim.
For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an
appeal. 20 C.F.R. § 501.3(d)(2). For final adverse decisions of OWCP issued on or after November 19, 2008, a
claimant must file an appeal within 180 days of the decision. 20 C.F.R. § 501.3(e). Because more than 180 days
elapsed from the most recent merit decision dated January 6, 2011 to the filing of this appeal on May 4, 2012 the
Board lacks jurisdiction to review the merits of this case.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the March 6, 2012 nonmerit decision.
Since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision,
the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit the evidence to OWCP with a request for reconsideration.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that his request for reconsideration was not timely filed and
did not establish clear evidence of error.
FACTUAL HISTORY
On November 24, 2010 appellant, then a 37-year-old correctional officer, filed a
traumatic injury claim alleging that on November 24, 2010 he sustained lumps on the left side of
his forehead and left foot when he was assaulted by an inmate. He stopped work on
November 25, 2010 and returned on November 28, 2010.
By letter dated December 3, 2010, OWCP informed appellant that no evidence was
received to establish his claim and requested additional information to support his claim.
In a handwritten employee health record, a physician with an illegible signature noted
that appellant sustained an injury while wrestling an inmate that day. Swelling of the right foot
was noted.
Appellant also submitted hospital records and prescription notes by Dr. Ann-Jeanette
Geib, Board-certified in emergency medicine, indicating that appellant was examined in the
emergency room on November 24, 2010.
In a November 24, 2010 computerized tomography (CT) scan report, Dr. Yaron Lebovitz,
a Board-certified diagnostic radiologist, noted that appellant sustained an unspecified injury to
the head. He did not observe any fracture defects and visualized objects. Dr. Lebovitz
concluded that the CT scan of the head was negative.
In a November 24, 2010 diagnostic report of appellant’s foot, Dr. Jeffrey Kempf, a
Board-certified diagnostic radiologist, observed a transverse fracture at the base of the fifth
metatarsal and mild overlying tissue swelling.
By decision dated January 6, 2011, OWCP denied appellant’s traumatic injury claim
finding that the medical evidence failed to establish that he sustained any diagnosed medical
condition as a result of the November 24, 2010 employment incident.
Following this decision, OWCP received a November 24, 2010 emergency room report
from Dr. Geib who related that appellant was assaulted by an inmate at work and sustained head
trauma and an injury to his right foot. Appellant noted that he was elbowed on the right side and
struck on the left temple and right foot. Dr. Geib reviewed his history and conducted an
examination. She observed mild swelling and tenderness of appellant’s left temple with no
palpable bony defect and tenderness to his right fifth metatarsal. No deformity or lacerations
were noted. Dr. Geib diagnosed head and foot contusion.
In a January 26, 2011 letter, Peter Lawrie, a safety and occupational health manager,
requested that OWCP reconsider accepting appellant’s claim. He stated that he witnessed a
contusion on appellant’s head and noted his complaints of leg pain about one hour after he had a
2

physical altercation with an inmate. Appellant was treated in the emergency room and returned
to full duty on November 26, 2010.
In an appeal request form dated February 6, 2012 and received on February 17, 2012,
appellant requested reconsideration. He stated that, due to a misunderstanding with the
employing establishment, he did not file his request on time. Appellant also resubmitted the
November 24, 2010 diagnostic and emergency room records.
By decision dated March 6, 2012, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.4 The
Board has found that the imposition of the one-year time limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.5 The one-year
period begins on the date of the original decision. However, a right to reconsideration within one
year accompanies any subsequent merit decision on the issues. This includes any hearing or
review of the written record decision, any denial of modification following reconsideration, any
merit decision by the Board, and any merit decision following action by the Board.6
OWCP may still reopen a claimant’s case for merit review, even if the claimant’s
applications was not filed within the one-year time limitation, if claimant’s application
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. To
establish clear evidence of error, a claimant must submit evidence relevant to the issue decided
by OWCP.7 The evidence must be positive, precise and explicit, and it must manifest on its face
that OWCP committed an error.8 Evidence that does not raise a substantial question concerning
the correctness of OWCP’s decision is insufficient to establish clear evidence of error.9 It is not
enough merely to show that the evidence could be construed so as to produce a contrary
conclusion.10 The evidence submitted must not only be of sufficient probative value to create a
conflicting medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.11 This entails a limited review by OWCP of
4

20 C.F.R. § 10.607(a).

5

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

6

D.G., 59 ECAB 455 (2008); Veletta C. Coleman, 48 ECAB 367 (1997).

7

F.R., Docket No. 09-575 (issued January 4, 2010); Dean D. Beets, 43 ECAB 1153 (1992).

8

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

9

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

10

Id.

11

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

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the evidence previously of record and whether the new evidence demonstrates clear evidence of
error on the part of OWCP.12 In this regard, OWCP will limit its focus to a review of how the
newly submitted evidence bears on the prior evidence of record.13 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that it improperly denied merit review in the face of such evidence.14
ANALYSIS
The Board finds that appellant filed an untimely request for reconsideration. The last
merit decision in this case was issued on January 6, 2011. Appellant submitted a request for
reconsideration on February 6, 2012. Because more than one year passed between January 6,
2011 and February 6, 2012, OWCP properly determined that the reconsideration request was not
timely filed.
The Board also finds that appellant’s untimely request failed to demonstrate clear
evidence of error. Appellant submitted new evidence following the January 6, 2011 denial
decision and the Board must conduct a limited review of how the evidence submitted with the
reconsideration request bears on the evidence previously of record.
In its January 6, 2011 decision, OWCP denied appellant’s traumatic injury claim on the
grounds that the medical evidence did not establish that he sustained an injury as a result of the
November 24, 2010 incident. Following the decision, it received a November 24, 2010 hospital
report from Dr. Geib. Although Dr. Geib diagnosed head and foot contusions and described the
November 24, 2010 incident, she did not address the issue of causal relationship, which was the
underlying issue of the January 6, 2011 decision. As noted, evidence that is not relevant to the
issue on which the claim was denied is insufficient to demonstrate clear evidence of error.15
Mr. Lawrie’s January 26, 2011 letter is not relevant to the issue on which the claim was denied
and is insufficient to establish clear evidence of error. The clear evidence of error standard
requires that appellant submit evidence that raise, a substantial question as to the correctness of
OWCP’s decision. It is intended to represent a difficult standard. It is not enough to show
merely that the evidence can be construed as to produce a contrary conclusion. Because the new
evidence did not raise a substantial question as to the correctness of the January 6, 2011 decision,
the Board finds that OWCP properly determined that the untimely request failed to establish
clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and failing to establish clear evidence of error.

12

Id.

13

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

14

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

15

Supra note 7.

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ORDER
IT IS HEREBY ORDERED THAT the March 6, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5