United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
SMITHSONIAN INSTITUTION, NATIONAL
GALLERY OF ART, Alexandria, VA, Employer
__________________________________________

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

Docket No.11-1606
Issued: April 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 22, 2011 appellant filed a timely appeal from a January 11, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP). 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.
ISSUE
The issue is whether appellant sustained a consequential right-knee injury as a result of
his accepted 2004 left knee and back conditions.
FACTUAL HISTORY
OWCP accepted that on August 31, 2004 appellant, then a 52-year-old pipefitter,
sustained a lumbar strain and disruption of a left-sided old anterior cruciate ligament medial
meniscus tear of the left knee as a result of lifting an intake grill at work. Appellant was placed
1

5 U.S.C. § 8101 et seq.

on the periodic rolls for temporary total disability beginning October 2004. He submitted several
medical reports and documents regarding medical treatment for his left knee and lumbar
conditions. Appellant underwent authorized left knee surgery on August 23, 2007 and
November 3, 2009.
In a February 23, 2007 handwritten statement, appellant related that on August 31, 2004
he injured his back and left knee at work. He stated that, during a January 11, 2007 examination,
he told Dr. Philip Bovell, an orthopedic surgeon, that he was having problems with his right
knee. Dr. Bovell informed appellant that his right knee was painful because he was putting
excess stress on it. Appellant stated that his right knee condition was related to his August 31,
2004 work injury and constituted a consequential injury.
In a May 24, 2007 report, Dr. Daniel Ignacio, Board-certified in physical medicine and
rehabilitation, noted appellant’s continued complaints of pain along the lower back and knee and
related that he now complained of some pain along the right knee as well. Upon examination of
the left knee, he observed moderate swelling with limited movement, tenderness along the
infrapatellar region and flexion to 70 degrees. Dr. Ignacio also noted hypoesthesia along both
legs. Examination of the right knee revealed flexion to 80 degrees with infrapatellar tenderness.
Dr. Ignacio diagnosed chronic progressive lumbar disc syndrome, chronic lumbar radiculopathy
and chronic synovitis of the left knee.
In a May 31, 2007 magnetic resonance imaging (MRI) scan examination, Dr. Howard
Sachs, a Board-certified diagnostic radiologist, observed a small, 7.0 millimeters cortical-based
cyst on the tibial plateau just medial to the midline in appellant’s right knee. His menisci,
cruciate ligaments, collateral ligaments, patellar and quadriceps tendons were intact. Dr. Sachs
concluded that appellant had small degenerative cysts on the surface of the tibial plateau and a
2.0 centimeters sized cyst in the tibiofemoral joint just posterior to the tibial attachment of the
right knee.
In a June 21, 2007 medical report, Dr. Ignacio related appellant’s complaints that his low
back and leg pain remained unresolved. Examination of the lumbar spine revealed trigger point
along the L4, L5 paraspinal muscles, moderate tenderness along the lumbar spine and moderate
muscle spasm along the lumbar spine at the areas of L2, L3 and L4 levels. Straight leg raise test
was positive to 60 degrees on the right side and 70 degrees on the left side. Examination of the
lower extremity revealed moderate swelling along both knees, particularly the left knee with
limited motions along the legs due to pain. Dr. Ignacio diagnosed lumbar disc syndrome and
radiculopathy and degenerative joint disease of both knees. Appellant submitted various medical
reports by Dr. Ignacio from 2007 until 2010 regarding treatment for appellant’s lumbar spine and
both knees.
In a July 6, 2007 medical report, Dr. Bovell noted that he had treated appellant for
chronic low back pain syndrome and instability over his left knee and stated that he recently
complained of discomfort over the right knee. He observed that an MRI scan showed right knee
degenerative joint disease, but no tear of the meniscus. Dr. Bovell recommended water therapy
and debridement and irrigation of the degenerated joint disease of the right knee. Appellant
submitted various medical reports by Dr. Bovell from 2007 until 2010 regarding treatment for
his lumbar spine and both knees.

2

In an October 15, 2007 handwritten statement, appellant explained that on July 23, 2007
he sent OWCP a letter about his right knee. He related that his physicians informed him that he
put more weight on his right knee because of his August 31, 2004 employment injuries, which
caused severe pain, swelling and weakness in his right knee. Appellant noted that his physicians
had sent OWCP all his medical reports about his right knee, which he believed resulted from his
work-related back and left knee conditions. He also pointed out that OWCP approved an MRI
scan examination, knee brace and water therapy for his right knee and requested that if his right
knee was accepted for a consequential injury that he needed a letter to confirm the acceptance.
In a November 26, 2007 orthopedic consultation report, Dr. Nigel M. Azer, a Boardcertified orthopedic surgeon, examined appellant for complaints of bilateral knee pain. He
provided an accurate history of injury regarding the August 31, 2004 employment injury and
reviewed appellant’s medical records. Dr. Azer pointed out that appellant’s left knee was more
symptomatic than his right knee. Examination of the left knee revealed valgus alignment, active
range of motion and stable valgus and varus stressing. Examination of the right knee revealed no
effusion with some crepitus in the patellofemoral articulation and some diffuse medial joint line
tenderness. Dr. Azer diagnosed valgus tricompartmental post-traumatic arthritis of the left knee
and early varus arthritis of the right knee.
In a May 8, 2008 handwritten statement, appellant stated that his right knee was a
consequential injury and related that his physicians informed him that his right knee was
becoming worse because he put too much excess stress on it.
On May 22, 2008 appellant filed a recurrence claim for his right knee.2
On November 19, 2008 OWCP referred appellant to a district medical adviser to
determine whether his right knee condition was causally related to his accepted injuries and
whether a left total knee arthroplasty was medically warranted for treatment of his accepted knee
condition.
In a November 25, 2008 report, the district medical adviser stated that he reviewed the
medical records and noted that on August 31, 2004 appellant injured his lower back and left knee
at work. He opined that appellant’s right knee condition was not in any way related to the
August 31, 2004 injury but was a preexisting injury that required surgery. The medical adviser
concluded that appellant’s right knee resulted from a preexisting condition and was not a
consequential injury to his August 31, 2004 employment injury.
In a March 24, 2009 consultation report, Dr. Hampton J. Jackson, a Board-certified
orthopedic surgeon, noted appellant’s complaints of persistent left knee and lower back pain
radiating into his legs and of increased right knee pain. He stated that appellant had confirmed
end-stage arthritis of the right knee and herniated disc at L4-5 as a result of his August 31, 2004
injury. Dr. Jackson recommended that appellant avoid all activities that may aggravate his
condition, including lifting, pushing and pulling and continue his pain management treatments.

2

Appellant submitted additional recurrence claims alleging that his right knee was worsening as a result of his
August 31, 2004 employment injuries.

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In a May 12, 2009 handwritten statement, appellant explained that the April 6, 2009
claim for recurrence was actually a claim for a right knee consequential injury. He stated that he
had problems with his right knee because of his accepted back and left knee conditions and
explained that because of his back and left knee problems he put excess stress on his right knee.
In a May 1, 2009 medical report, Dr. Ignacio noted appellant’s complaints of continued
left knee and low back pain as a result of an August 31, 2004 work injury and the development
of right knee pain with some swelling. He reviewed appellant’s medical records and conducted a
physical examination. Dr. Ignacio observed limited lumbar flexion to 60 degrees and multiple
trigger points along the lumbar paraspinal muscles. Straight leg raise tests were positive for both
sides. Examination of the left knee revealed moderate swelling, limited flexion to 70 degrees
and extension to -20 degree. Examination of the right knee revealed mild swelling, limited
flexion to 70 degrees and extension to -15 degrees. Dr. Ignacio diagnosed chronic internal
derangement of the left knee, chronic lumbar disc syndrome with chronic lumbar radiculopathy,
chronic internal derangement of the right knee with traumatic ganglion cyst and chronic pain
syndrome secondary to the above. He explained that because of appellant’s continued problems
with his left knee and lumbar spine he put more of his weight along the right knee in order to
protect his left knee, which caused inflammation, swelling and strain along the right knee.
Accordingly, Dr. Ignacio opined that appellant’s right knee condition was causally related to the
August 31, 2004 injury. He concluded that appellant’s right knee medical conditions and injuries
were consequential to the work-related medical conditions of August 31, 2004 and required
continued medical treatment.
On August 24, 2009 OWCP referred appellant to Dr. Robert Draper, a Board-certified
orthopedic surgeon, for a second opinion examination. In a September 10, 2009 medical report,
Dr. Draper reviewed the statement of accepted facts and appellant’s medical records. He noted
that a May 31, 2007 MRI scan of the right knee revealed small degenerative cysts on the surface
of the tibial plateau and a 2.0 centimeters sized cyst in the tibial femoral joint just posterior to the
tibial attachment. Appellant related that he developed some wear and tear in his right knee
because he shifted his weight from the left knee to the right knee due to the pain in his left knee.
He believed that the right knee was consequentially related to the August 31, 2004 employment
incident.
Examination of the right knee revealed full extension and 120 degrees of flexion.
Dr. Draper observed some crepitus in the right knee on range of motion, but no evidence of
instability, anterior and posterior drawer signs and effusion. He diagnosed lumbosacral strain,
osteoarthritis of the left knee and early degenerative arthritis of the right knee with degenerative
cyst on the surface of the tibial plateau. Dr. Draper noted that appellant’s complaints for his
right knee began in 2007, many years after the August 31, 2004 employment injury. He found
no evidence that appellant actually injured his right knee on August 31, 2004. Instead,
Dr. Draper opined that appellant had early changes of osteoarthritis in the right knee, which was
not causally related or aggravated by the August 31, 2004 employment injury. He explained that
shifting weight from the left side to the right side was not a cause of appellant’s osteoarthritis
and did not aggravate the presence of osteoarthritis of the right knee. Dr. Draper reported that
appellant was not totally disabled and authorized him to return to a job that would not require
him to lift more than 50 pounds occasionally and 25 pounds frequently.

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In an October 10, 2009 report, Dr. Ignacio disagreed with Dr. Draper’s September 10,
2009 second-opinion report contending that he relied on erroneous history. He stated that
appellant did not deny weakness or giving way of his knees, but complained of significant pain
and weakness. Dr. Ignacio also alleged that Dr. Draper’s examination was incomplete because
he indicated that appellant’s left knee strength was +5, which was impossible since he had two
left knee surgeries. He reiterated that appellant developed right knee pain as a result of shifting
his weight due to his left knee pain and concluded that the right knee pain and osteoarthritis was
a post-traumatic consequential injury to the August 31, 2004 injury.
On February 19, 2010 OWCP found a conflict in the medical opinion evidence between
Dr. Ignacio and Dr. Draper regarding whether appellant’s right knee condition was causally
related to his accepted left knee and back conditions. It referred appellant, together with a
statement of accepted facts and the medical record, to Dr. David Dorin, a Board-certified
orthopedic surgeon, for an impartial medical examination.
In a March 12, 2010 report, Dr. Dorin provided an accurate history of injury regarding
the August 31, 2004 employment incident and thoroughly reviewed appellant’s medical records
from April 29, 2005 to January 25, 2010 regarding his left knee and lumbar conditions. He noted
that in reviewing the records he did not find any mention of symptoms, diagnosis or causal
relationship regarding appellant’s right knee problems and the August 31, 2004 injury. A
May 31, 2007 MRI scan of the right knee revealed a cortical base cyst in the tibial plateau just
medial to the midline of seven millimeters and another one of three millimeters anteriorly,
medial to the midline. Dr. Dorin disagreed with Dr. Ignacio that the 2007 MRI scan revealed
arthritis of the knee because appellant’s menisci, cruciate ligaments and patellar and quadriceps
tendons were intact. He noted that the small cysts were preexistent and unrelated to the
August 31, 2004 injury. Dr. Dorin further explained that the transfer of weight from the left leg
to the right leg would not produce any arthritic condition to the right knee.
Upon examination of the right knee, Dr. Dorin did not find any visible deformity,
palpable swelling or effusion in the suprapatellar pouch, tenderness of the patellofemoral joint
with direct pressure and palpation or instability of the anterior or posterior cruciate ligaments.
He observed satisfactory strength of flexion and extension against resistance with no evidence of
undue laxity. Stress loading maneuvers did not produce any symptoms in the medial or lateral
compartment of the knee and the McMurray’s test was negative. An MRI scan of the right knee
revealed two very small cysts between three to seven millimeters in the posterior aspect, medial
to the midline of the knee with no visible evidence of damage to the articular surface of the tibia
and femur. Dr. Dorin reviewed appellant’s diagnostic results and found no evidence of
degenerative arthritis of the knee, but noted that there might possibly be some slight narrowing
of the medial compartment of the knee. He stated that based on the extensive documentation he
reviewed appellant’s right knee symptoms were not consequential to his August 31, 2004 injury.
Dr. Dorin explained that appellant’s right knee symptoms did not appear until 2007 and
consisted of tenderness of the patellar tendon and swelling, but no evidence of effusion, synovitis
or documented arthritis of the knee. He concluded that appellant’s right knee symptoms were
due to the natural evolution of degenerative changes and that the small cyst on the tibofemoral
joint was not causally related to or consequential to the August 31, 2004 injury.

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In a decision dated April 12, 2010, OWCP denied appellant’s claim finding insufficient
medical evidence establishing that he developed a right knee condition as a result of his accepted
August 31, 2004 employment injury. It found that the weight of the medical evidence was with
Dr. Dorin’s impartial medical examiner report, which found that appellant’s right knee condition
was not causally related to his accepted lumbar and back conditions.
In a letter dated May 5, 2010, appellant disagreed with the denial decision and noted that
the bills for treatment of the right knee had been paid for. He also contended that Dr. Dorin did
not thoroughly examine his right knee during the impartial medical examination. Appellant
submitted copies of many medical reports that were previously submitted.
On May 19, 2010 appellant filed a request of the written record along with several reports
and documents previously on file. By decision dated June 11, 2010, OWCP denied his request
for a review of the written record as untimely filed.
In a letter dated August 28, 2010, appellant appealed the June 11, 2010 decision denying
his request for a review of the written record as untimely. He stated that OWCP issued its
decision on April 12, 2010 and that he mailed his package via express mail on May 6, 2010. The
package was delivered on May 7, 2010 and was received by Mark Beal. In a September 23,
2010 letter, OWCP determined that appellant did timely file his request for a review of the
written record and vacated its June 11, 2010 denial decision. It noted that a copy of the delivery
confirmation letter was received verifying that his appeal was delivered on May 7, 2010.
In April 1 and 9, 2010 reports, Dr. Ignacio noted that on August 31, 2004 appellant
sustained an injury at work and complained of persistent pains along both knees following the
injury. Examination of the left knee revealed mild swelling and diffused tenderness with limited
movement, flexion to 80 degrees and extension to -15 degrees. Examination of the right knee
revealed flexion to 90 degrees with infrapatellar and joint line tenderness.
In a June 28, 2010 report, Dr. Ignacio noted that on August 31, 2004 appellant sustained
an injury at work. Appellant underwent multiple surgeries for his left knee and developed pain
along the lower back and right knee. Examination of the right knee revealed swelling and
limited flexion to 70 degrees and extension to -15 degrees. Dr. Ignacio diagnosed chronic right
knee pain and complex regional pain syndrome. He stated that appellant’s right knee injury was
related to the left injury and explained that the overuse of the right knee as a result of left knee
pain and the weakness from frequent falls strained the right knee. Accordingly, the right knee
condition was consequential to the August 31, 2004 employment injuries.
By decision dated January 11, 2011, OWCP denied appellant’s claim finding insufficient
medical evidence establishing that he developed a right knee condition as a result of his accepted
August 31, 2004 employment injuries. It found that the weight of the medical evidence was with
Dr. Dorin’s impartial medical examiner report, which found that appellant’s right knee condition
resulted from the natural degenerative process and not a result of his accepted conditions.

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LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent, intervening cause attributable to the employee’s own intentional conduct.3 The
Board has held that the subsequent progression of an employment-related condition “remains
compensable so long as the worsening is not shown to have been produced by an independent
nonindustrial cause.”4 If a member weakened by an employment injury contributes to a later fall
or other injury, the subsequent injury will be compensable as a consequential injury, if the
further medical complication flows from the compensable injury, i.e., “so long as it is clear that
the real operative factor is the progression of the compensable injury, with an exertion that in
itself would not be unreasonable in the circumstances.”5
A claimant bears the burden of proof to establish a claim for consequential injury. As
part of this burden, he must present rationalized medical opinion evidence, based on a complete
medical and factual background, establishing causal relationship.6 Rationalized medical opinion
evidence is medical evidence, with stated reasons of a physician, on whether there is a causal
relationship between the employee’s diagnosed condition and the specified employment factors
or incident.7 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the employee.8
If there is a disagreement between the physician making the examination for the United
States and the physician of an employee, the Secretary shall appoint a third physician (known as
a referee physician or impartial medical specialist) who shall make an examination.9 In cases
where OWCP has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such specialist, if sufficiently well rationalized and based upon
a proper factual background, must be given special weight.10

3

Clement Jay After Buffalo, 45 ECAB 707, 715 (1994); John R. Knox, 42 ECAB 193, 196 (1990).

4

Raymond A. Nester, 50 ECAB 173, 175 (1998); Robert W. Meeson, 44 ECAB 834, 839 (1993).

5

S.M., 58 ECAB 166 (2006); Raymond A. Nester, id.

6

Jennifer Atkerson, 55 ECAB 317 (2004); R.C., Docket No. 10-1789 (issued April 22, 2001).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

8

D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007).

9

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
10

B.P., Docket No. 08-1457 (issued February 2, 2009); Gloria J. Godfrey, 52 ECAB 486 (2001).

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ANALYSIS
Appellant alleges that he sustained a right knee condition as a consequence of his
accepted August 31, 2004 injuries. Dr. Ignacio, appellant’s treating physician, opined that
appellant’s right knee condition was related to his accepted back and left knee conditions as he
had to put extra force and stress on his right side. Dr. Draper, an OWCP referral physician,
found that appellant’s right knee symptoms were due to a degenerative condition and were not
causally related to his accepted employment injuries. OWCP found a conflict of medical opinion
regarding whether appellant’s right knee condition resulted from the August 31, 2004 injuries. It
referred him to Dr. Dorin, a Board-certified orthopedic surgeon, for an impartial medical
examination pursuant to 5 U.S.C. § 8123(a).
In a March 12, 2010 report, Dr. Dorin reviewed the medical evidence of record,
conducted a physical examination and determined that appellant’s right knee symptoms were not
causally related to or consequential to his accepted August 31, 2004 employment injury. Upon
examination of appellant’s right knee, he did not observe any visible deformity, palpable
swelling or effusion or instability. Dr. Dorin noted satisfactory strength of flexion and extension
against resistance with no evidence of undue laxity. Appellant’s right knee was also stable to
stress loading maneuvers and tested negative for McMurray’s test. An MRI scan of the right
knee further revealed two very small cysts between three to seven millimeters in the posterior
aspect, medial to the midline with no visible evidence of damage to the articular of the tibia and
femur. Dr. Dorin opined that the small cysts were preexistent and unrelated to appellant’s
accepted conditions. He noted that appellant’s right knee symptoms did not appear until 2007,
three years after the August 31, 2004 employment injury and that diagnostic tests showed no
evidence of effusion, synovitis or arthritis of the knee. Dr. Dorin concluded that appellant’s right
knee symptoms were due to the natural evolution of degenerative changes and not causally
related or consequential to the August 31, 2004 injury.
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Dorin. A reasoned opinion from a referee examiner is entitled to special weight.11 The
Board finds that Dr. Dorin provided a well-rationalized opinion based on a complete factual
background, statement of accepted facts, a review of the medical record and physical
examination findings. Dr. Dorin determined that appellant’s right knee symptoms were not
related to his August 31, 2004 employment injuries. Thus, his opinion is entitled to special
weight and represents the weight of the medical evidence.
The medical evidence appellant subsequently submitted is insufficient to overcome the
weight accorded Dr. Dorin regarding whether appellant sustained a right knee condition as a
consequence of the August 31, 2004 employment injuries. In reports dated April 1 and 9 and
June 28, 2010, Dr. Ignacio reiterated his prior opinion that appellant’s right knee condition was
directly rated to his accepted left knee injury because he put additional stress and weight on his
right side. The Board has found that reports from a physician who was on one side of a medical
conflict that an impartial specialist resolved, are generally insufficient to overcome the weight
accorded to the report of the impartial medical examiner or to create a new conflict.12 Thus, the
11

D.T., Docket No. 10-2258 (issued August 1, 2011); Gloria J. Godfrey, id.

12

I.J., supra note 7; Barbara Warren, 51 ECAB 413 (2000).

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Board finds that Dr. Dorin’s impartial medical examiner’s opinion represents the weight of the
medical evidence.
The additional medical evidence is likewise insufficient to overcome the weight accorded
Dr. Dorin regarding whether appellant sustained any right knee condition as a consequence of
the August 31, 2004 employment incident. Appellant submitted medical reports by Drs. Sachs,
Azer, Jackson, and Bovell who treated appellant for complaints of lumbar and bilateral knee
pain. None of the physicians, however, offered an opinion on whether appellant’s right knee
condition was causally related to his accepted employment injuries. The Board has held that
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.13
While appellant has noted that OWCP has paid some medical expenses related to his
alleged right knee condition, the Board has held that OWCP’s gratuitous payment for medical
treatment, without more, does not constitute acceptance of a medical condition.14
On appeal, appellant disagreed that his right knee problems were a preexistent injury
because he did not experience right knee pain until he injured his left knee and back on
August 31, 2004. He noted that he had injured his right knee in 1993 and had surgery on his
right knee in 1996, but he reiterated his belief that his current right knee condition was a
consequential injury from his 2004 left knee and back injury. Causal relationship, however, is a
medical issue and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence.15 As appellant has failed to provide rationalized medical
opinion evidence establishing that he sustained a consequential right knee injury as a result of his
accepted injuries, he has failed to meet his burden of proof in this case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a right knee
condition as a consequence of his August 31, 2004 left knee injuries.16

13

C.B., Docket No. 09-2027 (issued May 12, 2010); A.D., 58 ECAB 149 (2006).

14

See Gary L. Whitmore, 43 ECAB 441 (1992); James F. Aue, 25 ECAB 151 (1974).

15

I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658 (issued October 22, 2009);
D.I., 59 ECAB 158 (November 6, 2007).
16

The Board notes that appellant submitted additional evidence following the January 11, 2011 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 that evidence to OWCP along with a request for reconsideration.

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ORDER
IT IS HEREBY ORDERED THAT the January 11, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 2, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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V.M., Appellant
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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CLEVELAND VETERANS ADMINISTRATION )
MEDICAL CENTER, Cleveland, OH, Employer
)
___________________________________________ )
Appearances:

Docket No. 08-1664
Issued: January 5, 2009

Case Submitted on the Record

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

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 27, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated March 20, 2008 which denied her claim for an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an emotional condition in the performance of duty.
FACTUAL HISTORY
On February 5, 2008 appellant, then a 50-year-old medical technician, filed an
occupational disease claim alleging that she developed anxiety and depression related to a hostile
work environment. She became aware of her illness on October 22, 2007 and realized her

condition was caused or aggravated by her employment on the same date. Appellant stopped
work on October 22, 2007.
By letter dated February 13, 2008, the Office asked appellant to submit factual and
medical information, including a detailed description of the employment factors or incidents that
she believed contributed to her claimed illness. In a letter of the same date, it requested the
employing establishment to provide comments from a knowledgeable supervisor addressing
appellant’s claim.
Appellant submitted a January 28, 2007 Veterans Administration physician’s telephone
consult which noted that she called about an alleged assault by a coworker. Also submitted were
emergency room discharge instructions for an October 16, 2007 emergency room visit.
Appellant came under the treatment of Dr. Heather Porter, a Board-certified family practitioner.
On October 22, 2007 Dr. Porter diagnosed fatigue secondary to anxiety. Appellant reported
arriving to work but not entering because she experienced anxiety and chest pain. Dr. Porter
took appellant off work for one week. On January 22, 2008 he noted that appellant’s symptoms
worsened and she continued to have trouble with one of her coworkers. Dr. Porter diagnosed
fatigue secondary to anxiety and took appellant off work for two weeks.
In a March 20, 2008 decision, the Office denied appellant’s claim finding that the
evidence was insufficient to establish that she sustained an injury in the performance of duty. It
noted that she had not submitted sufficient evidence regarding the factual aspects of her claim.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by factors of her federal employment.1 To establish her claim that she
sustained an emotional condition in the performance of duty, appellant must submit the
following: (1) medical evidence establishing that she has an emotional or psychiatric disorder;
(2) factual evidence identifying employment factors or incidents alleged to have caused or
contributed to her condition; and (3) rationalized medical opinion evidence establishing that the
identified compensable employment factors are causally related to her emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.4
There are situations where an injury or an illness has some connection with the employment but
1

Pamela R. Rice, 38 ECAB 838 (1987).

2

Donna Faye Cardwell, 41 ECAB 730 (1990).

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

2

nevertheless does not come within the concept or coverage under the Act.5 When an employee
experiences emotional stress in carrying out her employment duties, and the medical evidence
establishes that the disability resulted from her emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from her emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of her work.6
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act. Where the disability
results from an employee’s emotional reaction to her regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.
On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.7
ANALYSIS -- ISSUE 1
Appellant generally alleged that she was subjected to a hostile work environment that
caused anxiety and depression. However, she did not submit any evidence addressing with
specificity those particular work incidents or factors she believed caused a hostile work
environment at the employing establishment. On February 13, 2008 the Office requested that
appellant submit factual evidence, including a detailed description of the employment incidents
that she believed contributed to her claimed illness. Appellant did not provide any additional
factual information or discuss specific incidents with respect to her claim. She has not identified
any regular or specially assigned duties to have caused her emotional condition. The record
contains no probative evidence supporting appellant’s assertions of a hostile work environment,
such as detailed witness statements supporting particular incidents at specific times that she
characterizes as a hostile work environment. To the extent that appellant alleges harassment, the
Board has held that unsubstantiated perceptions of harassment do not constitute employment
factors.8 The Board finds that appellant has not submitted sufficient factual evidence identifying
those employment factors alleged to have caused or contributed to her claimed emotional
condition.
The Board finds that the evidence of record is not sufficient to establish a compensable
work factor. Since appellant has not established a compensable work factor, the Board will not
address the medical evidence.9

5

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

6

Lillian Cutler, supra note 3.

7

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 3.
8

Ruthie M. Evans, 41 ECAB 416 (1990).

9

See Margaret S. Krzycki, 43 ECAB 496 (1992).

3

CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 20, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 5, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Louisville, KY, Employer
__________________________________________

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

Docket No. 14-926
Issued: September 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 11, 2014 appellant, through her attorney, filed a timely appeal of a January 27,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to modify the loss of wageearning capacity decision.
FACTUAL HISTORY
On March 13, 2000 appellant, then a 43-year-old clerk, injured her left leg and
experienced sciatica in the performance of duty. On July 18, 2000 she underwent a right L5-S1
discectomy during which a small nick was seen at the shoulder junction of the S1 nerve root.
1

5 U.S.C. § 8101 et seq.

OWCP accepted appellant’s claim for a herniated disc at L5-L1 on January 9, 2004. Appellant
was placed on the periodic rolls on February 16, 2005.
OWCP referred appellant for a second opinion evaluation. In a report dated April 29,
2010, Dr. Larry M. Parker, a Board-certified orthopedic surgeon, reviewed the history of injury
and set forth findings on physical examination. Appellant had a slightly positive straight leg
raising on the right, with slight diminution of the Achilles reflex on the right side. Dr. Parker
reviewed the May 17, 2008 magnetic resonance imaging (MRI) scan and concluded that
appellant had a recurrence of disc herniation with objective findings to support continuation of
the lumbar radiculitis in the right lower extremity with an L5 radicular pattern in the right lower
extremity. He found that appellant could work a sedentary or light position. Dr. Parker
completed a work capacity evaluation on May 11, 2010. Appellant could work eight hours a day
with restrictions. She could walk and stand for 4 to 8 hours a day with 5- to 10-minute breaks
every hour. Dr. Parker opined that appellant could lift up to 20 pounds.
OWCP referred appellant for vocational rehabilitation services on May 13, 2010. The
vocational rehabilitation counselor conducted a labor market survey based on appellant’s lack of
transferable skills and considered entry level positions within her light-duty physical
requirements of lifting up to 20 pounds and the need to change positions for 5 to 10 minutes each
hour. She identified the positions of general office clerk, cashier and outside delivery. The
vocational rehabilitation counselor provided labor market survey information to find that the
position of cashier II was reasonably available within appellant’s commuting area. There were
11,380 cashier positions available. The vocational rehabilitation counselor provided appellant
with 20 job openings as a cashier which did not require any specific education or vocational
preparation.
In a letter dated August 17, 2010, OWCP informed appellant that the positions of cashier,
Department of Labor, Dictionary of Occupational Titles (DOT) No. 211.462.10, was within her
physical restrictions. It stated that appellant would receive 90 days of placement assistance to
find employment.
The vocational rehabilitation counselor determined that the position of cashier II, DOT
No. 211.462.10, was within appellant’s work restrictions and vocational ability. It was defined
as a light position requiring lifting, carrying, pushing and pulling up to 20 pounds occasionally,
and up to 10 pounds frequently. The position required walking and standing frequently as well
as pushing or pulling. On November 8, 2010 the rehabilitation specialist stated that the position
of cashier II was reasonably available to appellant with an expected entry level wage of $7.25
per hour. The position description required up to 30 days of specific vocational preparation or
level 2 and the general educational requirements were reasoning level 3, mathematics level 2 and
language level 2.
On November 16, 2010 OWCP proposed to reduce appellant’s monetary benefits based
on her capacity to earn wages as a cashier II.
Counsel disagreed on November 24, 2010, contending that the job description was not in
keeping with her work restrictions.

2

By decision dated December 20, 2010, OWCP determined that the position of cashier II
represented appellant’s wage-earning capacity. It reduced her monetary benefits effective that
date.
Appellant, through her attorney, requested an oral hearing before an OWCP hearing
representative.
By decision dated July 29, 2011, a hearing representative affirmed the December 20,
2010 decision. She found that the cashier II position properly reflected appellant’s wage-earning
capacity and was within her physical abilities.
Appellant requested reconsideration and offered a legal argument based on the Board’s
decision in M.V.2
OWCP declined to reopen appellant’s claim in an October 12, 2011 decision.
Counsel appealed to the Board. In an October 2, 2012 decision, the Board found that the
position of cashier II represented appellant’s wage-earning capacity.3 The Board further found
that appellant had not submitted sufficient evidence to warrant modification of the loss of wageearning capacity determination. The Board distinguished the facts in M.V. from those in
appellant’s case.
OWCP referred appellant for a second opinion examination on May 2, 2012 to
Dr. David A. West, a Board-certified orthopedic surgeon. It requested that Dr. West address
whether appellant’s accepted work-related condition had resolved and whether she could
perform the duties of her date-of-injury position as a mail clerk. OWCP provided Dr. West with
appellant’s date-of-injury position description which noted that she was required to stand up to
eight hours a day and generally stand from three to five hours a day with walking from four to
eight hours a day.
In a report dated May 17, 2012, Dr. West examined appellant and found that she walked
in an upright position with no assistive device. He found negative straight leg raising and good
strength of the quadriceps, hamstrings, dorsiflexors and plantor flexors. Dr. West stated that
appellant had deep tendon reflexes at two of four at her Achilles and patella. He reported that
appellant was able to heel and toe walk with difficulty. Dr. West noted that appellant had a
radicular pattern in the right lower extremity and that her MRI scan demonstrated a recurrent
disc herniation. He found that appellant could not return to her date-of-injury position due to the
job requirements that she stand or walk for four to eight hours a day. Dr. West stated that
appellant could not kneel, bend, squat or climb.
On October 9, 2012 counsel requested reconsideration and again cited to M.V. He also
cited to Dr. West’s report.
2

Docket No. 10-1642 (issued June 15, 2011) (finding that as the vocational rehabilitation counselor trained
appellant as an entry-level budget analyst the record should have demonstrated how many of the positions available
were entry level and therefore suitable to the claimant’s vocational training).
3

Docket No. 12-228 (issued October 2, 2012).

3

By decision dated January 27, 2014, OWCP denied modification of appellant’s loss of
wage-earning capacity determination. It found that she did not submit medical evidence to
establish a material change in the nature and extent of her injury-related condition. OWCP noted
that Dr. West did not address appellant’s ability to perform the selected position. It further noted
that the Board had ruled on the reasonability of the cashier II position and found that M.V. was
not applicable to the facts of her case.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.4 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.5 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.6
Modification of a standing wage-earning capacity determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated or the original determination was
erroneous.7 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.8
ANALYSIS
Appellant requested modification of her loss of wage-earning capacity determination,
noting Dr. West’s second opinion report. OWCP requested a second opinion report from
Dr. West. The purpose of the second opinion report was to address whether appellant had any
continuing medical residuals due to her accepted employment injuries; and whether she could
perform her date-of-injury position.
OWCP based the November 16, 2010 wage-earning capacity determination on
Dr. Parker’s April 29, 2010 report. Dr. Parker found that appellant had a recurrent herniated disc
as well as radiculitis in the right lower extremity and diminution of the Achilles reflex. He
completed a work capacity evaluation on May 11, 2010 and advised that appellant could work
eight hours a day with restrictions. Dr. Parker found that she could walk and stand for four to
eight hours a day. He opined that appellant could lift up to 20 pounds.

4

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
5

K.R., supra note 2; Roy Matthew Lyon, 27 ECAB 186, 190 (1975); Ernest Donelson, Sr., 35 ECAB 503,
505 (1984).
6

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

7

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

8

Selden H. Swartz, 55 ECAB 272, 278 (2004).

4

The original loss of wage-earning capacity determination is not in question as the Board
found that OWCP met its burden of proof to reduce appellant’s compensation benefits based on
her capacity to earn wages in the constructed position of cashier II. The Board further addressed
the relevance of M.V.,9 finding that the facts of that case were not applicable to the facts at hand
in appellant’s claim. Appellant is the party attempting to modify the 2010 loss of wage-earning
capacity determination. She has the burden of proof to establish a material change in the nature
and extent of her injury-related condition. The only evidence that appellant cited in support of
her request for modification of the loss of wage-earning capacity is the May 17, 2012 report from
Dr. West. In the referral for a second opinion, OWCP did not request that Dr. West address
whether appellant sustained a material change in the nature and extent of her injury-related
condition. As such, he did not address this issue. In response to the questions posed by OWCP,
Dr. West found that appellant continued to have medical residuals due to her accepted condition
and could not return to her date-of-injury position. He noted that appellant continued to exhibit a
radicular pattern in the right lower extremity and a recurrent disc herniation. Dr. West opined
that appellant could not return to her date-of-injury position due to the job requirements that she
stand or walk for four to eight hours a day. He stated that appellant could not kneel, bend, squat
or climb. Dr. West did not find that she was unable to perform the duties of the cashier II
position, upon which the wage-earning capacity decision was based.
The Board finds that there is no evidence of a change in the nature and extent of
appellant’s injury-related condition warranting modification of her loss of wage-earning capacity
determination. Dr. Parker made similar findings to Dr. West in his April 29, 2010 report,
including a recurrent herniated disc, reduced Achilles reflex and radiculitis in the right lower
extremity. He provided work restrictions finding that appellant could not perform her date-ofinjury position and could only walk or sit for four to eight hours a day with breaks to change
position every hour. Dr. West agreed that appellant could not return to her date-of-injury
position due to the need to stand or walk for eight hours a day. He did not diagnose any
additional condition beyond that found by Dr. Parker. Dr. West did not find that there was a
change in the nature and extent of appellant’s injury-related condition or provide probative
medical rationale supporting modification of her loss of wage-earning capacity determination.
His report is not sufficient to establish that appellant sustained a material change of her accepted
back condition. It is appellant’s burden to provide medical evidence to support modification of
the loss of wage-earning capacity determination. The Board finds that she has not met her
burden of proof.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish a change in the nature and extent of her injury-related condition thus warranting
modification of her loss of wage-earning capacity determination.

9

Supra note 2.

5

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 4, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
BUREAU OF CUSTOMS & BORDER
PROTECTION, El Paso, TX, Employer
__________________________________________

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Appearances:
John W. Wesley, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-779
Issued: August 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 24, 2014 appellant, through counsel, filed a timely appeal from the
August 28, 2013 decision of the Office of Workers’ Compensation Programs (OWCP), which
denied his reconsideration request on the grounds that it was untimely filed and failed to present
clear evidence of error.1 Because more than 180 days elapsed from the most recent merit
decision dated August 8, 2012 to the filing of this appeal, the Board lacks jurisdiction to review
the merits of appellant’s claim pursuant to the Federal Employees’ Compensation Act2 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.

1

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant and his attorney on
March 7, 2014 to confirm his continuing desire for an oral argument in Washington, DC. No written confirmation
was received within the time allotted. The Board will decide the appeal on the record.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.
FACTUAL HISTORY
On January 21, 2011 appellant, then a 30-year-old border patrol agent, filed a Form CA-1
traumatic injury claim alleging that on August 21, 2010 he developed post-traumatic stress
disorder after participating in an hour long shoot-out at the Mexican border. Several bullets
struck near his vehicle and children were in the line of fire. Appellant did not stop work but
resigned on February 11, 2011.
Appellant submitted a witness statement from R. Bride, a coworker, dated January 21,
2011, who witnessed shots fired at the Mexican border in an incident which lasted over an hour.
He notified agents of the incident and they were transferred away from the border.
Appellant submitted a January 21, 2011 witness statement from P. Crane, a coworker,
who stated that several days after the shooting, he visited appellant who recounted several
traumatic incidents in his life including violent encounters at work. Mr. Crane reported that
appellant was not doing well and several days later he accompanied appellant to a physician’s
office.
The employing establishment submitted an incident report documenting the shooting on
August 21, 2010. The report indicated that on August 21, 2010 gunfire was exchanged in
Mexico between Mexican Federal Police and several assailants. The incident began when
Mexican Federal Police were attempting to conduct a vehicle stop on a stolen vehicle and the
vehicle refused to stop. The occupants began to shoot at the police with automatic weapons.
Appellant, on the American side of the border, withdrew after approximately 12 bullets began to
land near and around his vehicle from a distance approximately 80 yards south of his
deployment. He took a position of cover. The border was closed and traffic rerouted out of the
affected area. During this time, several additional barrages of gunfire were heard from Mexico.
In a decision dated March 11, 2011, OWCP denied appellant’s claim for a traumatic
injury. It found that the evidence did not support that the incident or events occurred as alleged.
On March 5, 2012 appellant requested reconsideration. He submitted an SF-50, notice of
personnel action, which noted that he resigned effective February 11, 2011. Appellant submitted
an undated report from Dr. Hatem Nour, a Board-certified psychiatrist, who diagnosed bipolar
disorder with post-traumatic stress disorder. Dr. Nour noted that appellant was unable to
perform his current job and his impairment prevented him from carrying a gun or being in a high
stress job.
On June 5, 2012 OWCP referred appellant for a second opinion to Dr. Robert Scott
Benson, a Board-certified psychiatrist, for a determination of whether appellant sustained a
work-related emotional condition. In a July 13, 2012 report, Dr. Scott noted that appellant had
symptoms which met the criteria for alcohol dependence in partial remission and had a previous

2

diagnosis of bipolar disorder type 1, recurrent episode. He noted that appellant’s description of
the events of August 21, 2010 would not meet the criteria for trauma to support the diagnosis of
post-traumatic stress disorder. Dr. Benson stated that appellant described easy irritability and
anger outbursts that would make any employment difficult. The factors contributing to his
condition were unclear but the available evidence did not support that his current emotional
condition was related to the August 20, 2010 incident.
In an August 8, 2012 decision, OWCP determined that the hour long shoot-out on the
Mexican border was a compensable work incident. It denied appellant’s claim for compensation
on the grounds that he did not submit sufficient medical evidence to establish that he sustained
an emotional condition as a result of the claimed incident.
In an appeal form dated August 5, 2013, appellant requested reconsideration. OWCP
received the request on August 23, 2013. Appellant resubmitted the employing establishment
incident report and witness statements from Mr. Bride and Mr. Crane. In an August 7, 2013
letter, received on August 23, 2013, appellant’s attorney asserted that his diagnosed
post-traumatic stress disorder, alcohol dependence and major depressive disorder were a direct
result of the August 21, 2010 border shoot-out. Counsel stated that, prior to this incident,
appellant was a fully functioning employee with no mental or social limitations. After the
shoot-out, appellant developed a disabling psychiatric illness for which he was hospitalized, lost
his career and the ability to carry a firearm. He self-medicated with alcohol. Counsel asserted
that appellant developed post-traumatic stress disorder as a direct result of the prolonged gun
battle on August 21, 2010. He noted that appellant was heavily involved in the shoot-out and
was the closest to the border when the firefight broke out and feared for his life. Since then,
appellant had visual hallucinations. Counsel stated that appellant continued to seek psychiatric
treatment for his illness and Dr. Gregoria Marrero, an attending psychiatrist diagnosed
post-traumatic stress disorder and mood disorder. In August 2012, the Social Security
Administration accepted appellant’s disability for the psychiatric condition of post-traumatic
stress disorder.
Appellant submitted reports from Dr. Marrero dated April 25 to July 25, 2013, who noted
a history of counseling for stress from 2009 to 2010. He was rehospitalized in August 21, 2013
after a confrontation with local police. Dr. Marrero noted that appellant presented with
concerning symptoms of mood disorder, depression and anxiety, anger and irritability,
unresolved grief and nonmilitary residual post-traumatic stress disorder symptomology impairing
his social and industrial functioning. He diagnosed post-traumatic stress disorder, major
depression with psychotic features, alcohol dependence and partner relational problem. In
reports dated June 25 and July 25, 2013, Dr. Marrero noted that appellant reported improvement.
He noted that appellant worked as a border patrol agent and had a psychotic-like episode.
Dr. Marrero diagnosed post-traumatic stress disorder, major depression with psychotic features,
alcohol dependence and partner relational problem. Also submitted were reports from a social
worker dated May 28 to August 2, 2013, who treated appellant for a history of post-traumatic
stress disorder. Appellant reported having nightmares and flashback over incidents he was
involved in while a border patrol agent. He also reported significant traumatic history including
his ex-fiancé aborting his child in 2002.

3

By decision dated August 28, 2013, OWCP denied appellant’s request for reconsideration
as it was untimely and did not establish 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.3 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of
OWCP decision for which review is sought.4 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.5
OWCP may not deny a reconsideration request solely on the grounds that it was not
timely filed. When a claimant’s application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether it establishes clear evidence of error. If an
application demonstrates clear evidence of error, OWCP will reopen the case for merit review.6
To establish clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP,7 is positive, precise and explicit and manifests on its face
that OWCP committed an error.8 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 decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to establish 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 established clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.9
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. The most recent OWCP merit decision in this case was issued on
August 8, 2012. Appellant’s August 5, 2013 letter requesting reconsideration was not received
3

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

4

20 C.F.R. § 10.607(a).

5

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

6

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 2011) (the term “clear evidence of
error” is intended to represent a difficult standard).
7

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

8

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

9

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

4

by OWCP until August 23, 2013, more than one year after the August 8, 2012 merit decision.
Therefore, it was not timely filed.10 Consequently, appellant must demonstrate clear evidence of
error by OWCP in denying his claim for compensation.
The Board finds that appellant has not established clear evidence of error on the part of
OWCP in the denial of his emotional condition claim. On reconsideration, appellant’s counsel
asserted that appellant’s diagnosed post-traumatic stress disorder, alcohol dependence and major
depressive disorder were a direct result of the employment incident on August 21, 2010. He
argued that before this incident appellant was a fully functioning employee with no mental or
social limitations. Starting at the shoot-out, appellant developed disabling psychiatric illnesses.
He continued to receive psychiatric treatment for his illness and was diagnosed with
post-traumatic stress and a mood disorder. While appellant addressed his disagreement with
OWCP’s denial of the claim, his general allegations do not raise a substantial question as to the
correctness of OWCP’s decision. OWCP properly found that his statement of August 7, 2013
did not establish clear evidence of error. The Board notes that entitlement to benefits under
another federal statute, in this case the Social Security Act, does not establish entitlement to
benefits under FECA.11 The Board has noted that there are different standards for medical proof
on the question of disability under FECA and under the Social Security Act.12
On reconsideration, appellant resubmitted reports of the employing establishment
incident report and the witness statements of Mr. Bride and Mr. Crane. OWCP had previously
considered this evidence. Appellant did not explain how this evidence was positive, precise and
explicit in manifesting that OWCP committed an error in denying his claim for compensation.
The resubmission of this evidence is not sufficient to raise a substantial question as to the
correctness of OWCP’s decision.
Reports from Dr. Marrero dated April 25 to July 25, 2013 noted that appellant
experienced trouble with anger and was recommended not to carry a weapon and was told to
resign. He noted that appellant presented with concerning symptoms of mood disorder,
depression and anxious, anger and irritability, unresolved grief, nonmilitary residual
post-traumatic stress disorder symptomology impairing social and industrial functioning.
Dr. Marrero diagnosed post-traumatic stress disorder, major depression with psychotic features,
alcohol dependence and partner relational problem. In reports dated June 25 and July 25, 2013,
he noted that appellant worked as a border patrol agent and had a psychotic-like episode.
Dr. Marrero diagnosed post-traumatic stress disorder, major depression with psychotic features,
alcohol dependence and partner relational problem.13 However, this evidence is insufficient to
raise a substantial question as to the correctness of OWCP’s decision. The Board notes that clear
10

20 C.F.R. § 10.607(a).

11

Freddie Mosley, 54 ECAB 255 (2002).

12

Daniel Deparini, 44 ECAB 657 (1993).

13

Also submitted was reports from a social worker who treated appellant for post-traumatic stress disorder. The
Board has held that medical evidence must be from a qualified physician and that a social worker is not a physician
as defined under FECA such that an opinion from a social worker is of no probative medical value. See S.S., Docket
No. 13-1919 (issued May 16, 2014); 5 U.S.C. § 8101(2) (defines the term “physician”).

5

evidence of error is intended to represent a difficult standard. The submission of a detailed
well-rationalized 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.14
Thus, appellant has not established clear evidence of error by OWCP in its August 28,
2013 decision.
On appeal, counsel asserted that OWCP erred in finding that the August 21, 2010
incident was not the cause of appellant’s disability and that the statement of accepted facts
provided to Dr. Benson was inaccurate and incomplete. An affidavit from appellant was
submitted regarding the claim and other new evidence. As noted, the Board does not have
jurisdiction over the merits of the claim. Appellant has not presented evidence or argument that
raises a substantial question as to the correctness of OWCP’s decision for which review is
sought. The Board may not consider new evidence for the first time on appeal.15
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

14

D.G., 59 ECAB 455 (2008).

15

20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the August 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2014
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OVERTON BROOKS MEDICAL CENTER,
Shreveport, LA, Employer
__________________________________________

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Appearances:
J. Allen Cooper, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1545
Issued: December 12, 2013

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 June 18, 2013 appellant, through counsel, timely appealed the December 31, 2012
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent
merit decision is dated September 7, 2012, which is more than 180 days prior to the filing of the
instant appeal. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether the Branch of Hearings and Review properly denied appellant’s
request for a hearing.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 54-year-old licensed practical nurse (LPN), has an accepted occupational
disease claim for right bicipital tenosynovitis which arose on or about February 22, 2001, an
accepted traumatic injury claim for neck sprain and right rotator cuff sprain which occurred on
June 12, 2008 and an accepted right rotator cuff sprain and right shoulder primary osteoarthritis
which occurred on April 8, 2009. With respect to the April 2009 injury, she received a schedule
award for 12 percent impairment of the right upper extremity.2 OWCP combined the case
records of appellant’s three right upper extremity injuries and designated the February 2001
injury as the master file.
Appellant resigned effective January 6, 2012. Prior to her resignation, she was not
performing her date-of-injury job. Appellant had accepted a permanent job offer on
September 30, 2011 with retained pay. Her position title at the time of her January 6, 2012
resignation was “Health Technician.” Appellant subsequently filed a claim (Form CA-7) for
wage-loss compensation beginning January 9, 2012. OWCP developed the claim as a recurrence
of disability and advised her of the type of evidence necessary to establish entitlement to wageloss compensation.
By decision dated September 7, 2012, OWCP denied appellant’s claimed recurrence of
disability as she had failed to demonstrate that her disability beginning January 9, 2012 was
causally related to her employment injuries.
On October 12, 2012 appellant, through counsel, requested an oral hearing.
In a decision dated December 31, 2012, the Branch of Hearings and Review denied
appellant’s request for a hearing as untimely filed. The hearing representative also denied a
discretionary hearing noting that appellant could instead file a request for reconsideration with
OWCP.
LEGAL PRECEDENT
Any claimant dissatisfied with an OWCP decision shall be afforded an opportunity for an
oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the decision for which a hearing is sought.3 If the request is not made within 30 days, a
claimant is not entitled to a hearing or a review of the written record as a matter of right. OWCP
regulations further provide that the “claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same decision.”4 Although a

2

The June 22, 2011 schedule award covered a period of 37.44 weeks from May 24, 2011 to February 10, 2012.

3

20 C.F.R. § 10.616(a).

4

Id.

2

claimant may not be entitled to a hearing as a matter of right, the Branch of Hearings and Review
may exercise its discretion to either grant or deny a hearing.5
ANALYSIS
Appellant requested a hearing utilizing the appeal request form that accompanied the
September 7, 2012 decision. The form is signed and dated October 12, 2012. Appellant’s
counsel submitted the hearing request under cover letter dated October 12, 2012. As noted,
OWCP issued its decision on September 7, 2012, which was more than 30 days prior to her
October 12, 2012 hearing request. The regulations clearly specify that “[t]he hearing request
must be sent within 30 days ... of the date of the decision for which a hearing is sought.”6
Appellant’s October 12, 2012 request was untimely and, therefore, she was not entitled to a
hearing as a matter of right. The Branch of Hearings and Review also denied her request on the
basis that her claim for wage-loss compensation beginning January 9, 2012 could be addressed
by requesting reconsideration before OWCP. The Board finds that the hearing representative
properly exercised her discretionary authority in denying appellant’s request for a hearing.7
CONCLUSION
The hearing representative properly denied appellant’s October 12, 2012 request for a
hearing.

5

5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33
ECAB 140 (1981).
6

20 C.F.R. § 10.616(a).

7

Mary B. Moss, 40 ECAB 640, 647 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the December 31, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 12, 2013
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
TENNESSEE VALLEY AUTHORITY,
BROWNS FERRY NUCLEAR PLANT,
Decatur, AL, Employer
__________________________________________

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

Docket No. 07-1190
Issued: September 13, 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 March 29, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 19, 2007 with respect to a hearing loss
claim. 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 hearing loss causally related to his federal
employment.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated October 6, 2006, the
Board reversed a July 18, 2005 Office decision finding that appellant’s claim for an

employment-related hearing loss was untimely filed.1 The history of the case is contained in the
Board’s prior decision and is incorporated herein by reference.
On return of the case record, the Office prepared a statement of accepted facts and
referred appellant, along with medical records, to Dr. George Godwin, an otolaryngologist. In a
form report (CA-1332, outline for otologic evaluation) dated December 12, 2006, Dr. Godwin
diagnosed bilateral neurosensory hearing loss. The report is accompanied by an audiogram dated
December 12, 2006. Dr. Godwin checked a box that the hearing loss was “not due” to noise
exposure in appellant’s federal employment. He explained, “Hearing was essentially the same
pre- and post-fed[eral] employment. The current hearing loss is after fed[eral] employment
years. There is no evidence of work-related hearing loss during the [19]76 to [19]88
compensable time frame.”
By decision dated January 19, 2007, the Office denied appellant’s claim for
compensation. The Office found that the evidence of record did not support a hearing loss
causally related to noise exposure in his federal employment.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.2 Neither the condition becoming apparent during a period of employment,
nor the belief of the employee that the hearing loss was causally related to noise exposure in his
federal employment, is sufficient to establish causal relationship.3
ANALYSIS
In the present case, the second opinion otolaryngologist, Dr. Godwin, opined that
appellant’s bilateral hearing loss was not related to noise exposure in his federal employment.
The Board notes that the evidence from the employing establishment indicated that appellant had
last worked in federal employment in August 1988. Dr. Godwin explained his opinion by
indicating that the evidence did not establish a progression of hearing loss while appellant
worked at the employing establishment. As the Board noted in its prior decision, the record also
contains a June 15, 2005 report from an Office medical adviser opining that appellant’s hearing
loss was not related to noise exposure in his federal employment. The medical adviser also
noted that employing establishment audiograms did not show a progression of hearing loss.
The evidence of record therefore includes rationalized medical opinions from the second
opinion examiner, Dr. Godwin, and an Office medical adviser that the hearing loss was not

1

Docket No. 06-1384 (issued October 6, 2006).

2

Stanley K. Takahaski, 35 ECAB 1065 (1984).

3

See John W. Butler, 39 ECAB 852, 858 (1988).

2

employment related. Appellant did not submit any probative medical evidence on the issue.4
Accordingly, the weight of the medical evidence is found to be with Dr. Godwin and the Office
medical adviser. Appellant has not established a hearing loss causally related to noise exposure
in his federal employment.
CONCLUSION
The Office properly determined that the evidence of record does not establish an
employment-related hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 19, 2007 is affirmed.
Issued: September 13, 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

4

Appellant did submit a new medical report on appeal to the Board. The jurisdiction of the Board is limited to
evidence that was before the Office at the time of its final decision. 20 C.F.R. § 501.2(c). Since this evidence was
not before the Office, the Board cannot review the evidence on this appeal.

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