United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Portland, OR, Employer
__________________________________________

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Appearances:
John E. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1934
Issued: September 29, 2014

Oral Argument July 9, 2014

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

JURISDICTION
On August 20, 2013 appellant, through her attorney, filed a timely appeal from a
February 25, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant’s wage-earning capacity
was represented by her actual earnings.
FACTUAL HISTORY
On August 24, 2003 appellant a 40-year-old registered nurse, injured her right thumb
when attempting to restrain a patient. OWCP accepted right thumb sprain and joint derangement
1

5 U.S.C. § 8101 et seq.

of the right hand and authorized surgery on the first metacarpal on the right hand which was
performed on February 19, 2004. Appellant was hired as a part-time temporary employee and
began working on October 20, 2002.2 She retired on October 9, 2009.
There is prior development which is relevant to the claim before the Board. On
February 4, 2008 OWCP found a conflict of medical opinion between appellant’s treating
physician, Dr. J. Theodore Swartz, Jr., a Board-certified orthopedic surgeon, who found that she
could work four hours a day within certain restrictions and the January 24, 2008 opinion of
Dr. Stephen J. Thomas, a Board-certified orthopedic surgeon and OWCP referral physician, who
found that appellant could work eight hours a day within specified restrictions. To resolve the
conflict appellant was referred to Dr. Joseph Mandiberg, a Board-certified orthopedic surgeon.
In a March 26, 2008 report, Dr. Mandiberg found that appellant could work eight hours a day at,
sedentary work with the following restrictions: keyboarding on occasional basis, fine motor
activities on an occasional basis, right upper extremity repetitive grasping up to 10 pounds on an
occasional basis, pulling and lifting with only the right upper extremity limited to 10 pounds on
an occasional basis, repetitive right upper extremity pinching (lateral pinch and three-point
pinch) limited to six pounds and five pounds respectively on an occasional basis, reaching over
the shoulder height is not limited, handwriting is limited to an occasional basis (modified pen
with built-up foam grip is recommended for easier pinching), driving performed on a frequent
basis (as it is a bilateral upper extremity activity) and minimal crawling (defined by
Dr. Mandiberg as less than 10 percent of the workday).
On October 30, 2008 the employing establishment offered appellant a modified
temporary position as a nurse in the compliance office in a support role for the compliance
program and the compliance officer effective January 6, 2009. The job title was a nurse 1,
grade 1, step 16 with a salary of $76,012.00 per annum with a tour of duty of 7:15 a.m.
to 3:45 p.m. Appellant was instructed to report to Sheri Russell, the compliance officer, as her
supervisor. The position was described as sedentary. Appellant was to assist the compliance
officer in ensuring that the medical center exercised due diligence with respect to business
2

This case was previously before the Board. On August 30, 2005 the Board set aside a November 16, 2004
OWCP decision reducing appellant’s compensation benefits for failing to cooperate with vocational rehabilitation.
Docket No. 05-433 (issued August 30, 2005). In a December 23, 2008 decision, the Board set aside August 21,
2006 and May 3, 2007 decisions and remanded the case for further development to determine the correct pay rate for
purposes of establishing wage-earning capacity. Docket No. 08-224 (issued December 23, 2008). On
March 8, 2010 the Board affirmed May 20 and November 17, 2008 decisions denying appellant’s compensation
claim. Docket No. 09-1173 (issued March 8, 2010). In a March 17, 2010 decision, the Board remanded the case for
a proper determination of the pay rate to be used in determining wage-earning capacity. Docket No. 09-1816
(issued March 17, 2010). On October 26 and 29, 2010 the Board dismissed appellant’s appeals for lack of
jurisdiction in Docket No. 10-531 (issued October 26, 2010) and Docket No. 10-260 (issued October 29, 2010). On
January 20, 2012 the Board dismissed her appeal of a July 13, 2010 decision as the case was in an interlocutory
posture. Docket No. 11-554 (issued January 20, 2012). On October 1, 2012 the Board set aside the
November 22, 2011 decision which affirmed a finding that a modified nurse position fairly and reasonably
represented appellant’s wage-earning capacity and was not makeshift in nature. The Board found that OWCP’s
hearing representative denied counsel’s request to question an employer representative regarding whether the
position was makeshift at the September 28, 2011 hearing without referencing FECA regulations or providing
sufficient reasoning. Docket No. 12-978 (issued October 26, 2012). The facts and law contained in those decisions
and orders are incorporated herein by reference.

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operations and compliance with applicable laws, regulations and policies. Work assignments
were to include conducting physical and record audits of part-time physicians and the part-time
physician program; collaborating with services and human resources/payroll regarding part-time
physician time and attendance; making telephone calls, facilitating meetings for managers and
timekeepers; conducting seated review of physician log sheets for their scheduled tours;
comparing paper documents to electronic records; aggregating part-time physician monitor
reports; reviewing paper or electronic spreadsheets sent from the medical center services and
entering the results via computer into Excel spreadsheets involving minimal one handed typing;
performing resident supervision documentation audits with minimal one handed data entry;
reviewing electronic patient lists; assisting with preparation of routine compliance reports;
maintaining program records; collaborating with managers, supervisors and front line staff as
needed; assisting with compliance program development by attending committee meetings
involving planning, education and training programs; and completing miscellaneous web-based
or onsite training as required for understanding of the compliance program. The physical
requirements of the job included walking, standing, sitting, reaching, alternating throughout the
day, fine manipulation, keyboarding and grasping with no right side upper extremity
involvement over an occasional basis, no right hand grasping over 10 pounds occasionally, no
pulling or lifting over 10 pounds with the right hand occasionally, no right handed pinching
beyond five to six pounds, no handwriting over an occasional basis using a built up grip pen, no
crawling with ergonomic equipment to include ergonomic chair, left handed keyboard and
mouse, headset, keyboard tray and a built up foam grip pen.
On November 3, 2008 OWCP found the position of registered nurse, modified, to be
suitable to her work capabilities. It provided appellant 30 days to accept the position or provide
reasons for refusing the position. On December 15, 2008 appellant accepted the modified
temporary position as a nurse in the compliance office effective January 6, 2009. On
April 27, 2009 the employment establishment noted that she worked in the modified position
until April 3, 2009 when the assignment expired.
On May 11, 2009 OWCP issued a loss of wage-earning capacity (LWEC) decision
reducing her monetary benefits based on actual wages earned in her modified position as a
nurse 1. The May 11, 2009 decision was subsequently set aside and remanded on the issue of
pay rate.3
In a May 20, 2011 decision, OWCP issued a LWEC decision reducing appellant’s
compensation based on the actual wages earned in the modified nurse position that she worked
from January 6 to April 3, 2009.
Appellant, through her attorney, requested an oral hearing, which was held on
September 28, 2011. He contended that the position on which the LWEC decision was based
was makeshift in nature. Yvonne Carson, a registered nurse and injury management program
manager, attended the hearing on behalf of the employing establishment. Counsel requested that
he be permitted to question Ms. Carson, who was responsible for structuring and presenting to
3

In a decision dated March 17, 2010, the Board set aside the May 11, 2009 decision and remanded the case to
OWCP for a proper calculation of appellant’s pay rate. Docket No. 09-1816 (issued March 17, 2010).

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appellant the modified nurse position. OWCP’s hearing representative denied the request. At
the hearing, appellant testified that she did not perform the duties outlined in her modified
position description, rather, she went into work and essentially did nothing. She sat at her desk
and watched the clock, took long lunches, made telephone calls, went to Starbucks, helped her
daughter with her homework, watched television, surfed the internet and listened to her iPod.
Appellant testified that she did perform the job duty of locating part-time doctors at workstations
and documenting their presence.
In a statement dated October 18, 2011, Ms. Carson noted that the October 30, 2008 job
offer was in accordance with appellant’s prescribed permanent work restrictions. She noted a
nursing job description was prepared to describe appellant’s nurse position which was created to
fill an agency need and fit her physical requirements. Ms. Carson noted appellant was hired to
function as a nurse in support capacity to Ms. Russell, a compliance officer. She noted that
Ms. Russell performed the tasks of the October 30, 2008 job offer and appellant’s job was to
support those functions. Ms. Carson noted that a functional statement was made to describe
appellant’s position and was written by the hiring service, approved by the employing
establishment and placed on the employing establishment organization chart before it was
offered. The job duties were varied and included verifying the participation of physicians and
were listed in expanded form to include all the possible tasks of that position which could be
asked of appellant within her restrictions. Ms. Carson noted, however, that all of the tasks for
the position did not have to be included in appellant’s daily experience on the job and
Ms. Russell may not have had occasion to ask appellant to perform everything on the list. She
noted that the employing establishment carefully designed the modified position to comply with
appellant’s physical restrictions and she was not aware that appellant was not performing those
duties in accordance with the job description.
In a November 22, 2011 decision, OWCP’s hearing representative affirmed the
May 20, 2011 decision finding that appellant’s actual earnings in the modified position of
nurse 1 fairly and reasonably represented her wage-earning capacity and was not makeshift in
nature.
On October 1, 2012 the Board set aside the November 22, 2011 decision and remanded
the matter for further action. The Board found that OWCP’s hearing representative denied
appellant’s request to question Ms. Carson with regards to the job offer without proper regard to
FECA implementing regulations and failed to adequately explain the reasoning behind his
decision.
On remand, OWCP conducted a telephone conference on November 7, 2012 between the
senior claims examiner and Ms. Carson to determine if the offered position was makeshift.
Ms. Carson advised that the specific duties of the October 2008 job offer were matched with
appellant’s permanent restrictions and the employing establishment’s needs and added to the
organizational chart once approved. She stated that other employees had performed the duties of
the October 2008 job offer, noting that the compliance office performed the duties as a registered
nurse in a support capacity to the medical center director and appellant’s position was to support
those same functions. Ms. Carson noted that the duties were in compliance with appellant’s
restrictions. The claims examiner indicated that a copy of the conference call was provided to
counsel.
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By decision dated November 26, 2012, OWCP found that appellant’s actual earnings in
the modified position of nurse 1 fairly and reasonably represented her wage-earning capacity and
was not makeshift in nature. The decisions were mailed to the address of record for appellant
and her attorney but were returned as undeliverable. On December 12, 2012 OWCP reissued the
November 26, 2012 decision to her and counsel. It provided a copy of the conference
memorandum dated November 7, 2012.
On December 25, 2012 counsel requested an oral hearing. He received a copy of the
November 7, 2012 conference memorandum but noted that he was not invited to participate in
the conference call and OWCP failed to provide him 15 days to respond to the memorandum as
provided in OWCP procedures. In a February 6, 2013 decision, an OWCP hearing
representative set aside the December 12, 2012 decision and instructed OWCP to provide
appellant and counsel 15 days to respond to the conference memorandum. On February 7, 2013
OWCP provided appellant and counsel with the conference call memorandum and provided
15 days to submit written comments.
On February 14, 2013 counsel asserted that the employing establishment created a
makeshift job for the purpose of keeping appellant on the payroll for 90 days. He stated that the
job did not exist before or after appellant was terminated. Counsel requested a copy of the
compliance officer’s job description and asserted that she did not do the specific job tasks in the
compliance officer’s job description and that the compliance officer did not do the tasks listed in
her makeshift job offer. He contended that appellant was not performing duties that were
performed by other administrative nursing positions. Counsel did not dispute that the job created
for her was within her physical restrictions set out by the physician. He contended that the tasks
appellant performed were performed by no other person, that she was not trained to do the
compliance officer’s tasks when the compliance officer was away from the office nor did the
compliance officer train her to learn the duties of the compliance officer so she could obtain
work as a compliance officer in the private sector.
In a decision dated February 25, 2013, OWCP found that appellant’s actual earnings in
the modified position of nurse 1 fairly and reasonably represented her wage-earning capacity and
was not makeshift in nature.
LEGAL PRECEDENT
Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.4
OWCP procedures state that after a claimant has been working for 60 days, OWCP will
make a determination as to whether actual earnings fairly and reasonably represent wage-earning

4

Dennis E. Maddy, 47 ECAB 259 (1995).

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capacity.5 OWCP’s procedure manual provides guidelines for determining wage-earning
capacity based on actual earnings. A job that is part time (when the claimant was a full-time
employee at the time of injury), seasonal in an area where year-round employment is available or
temporary (when the date-of-injury position was a permanent position) is not appropriate for a
wage-earning capacity determination.6
In addition, it is well established that a position that is considered an odd-lot or makeshift
position designed for a claimant’s particular needs is not appropriate for a wage-earning capacity
determination.7 The Board has discussed several factors that may support a finding that the
offered position was makeshift in nature. These factors include: (1) the position did not have an
official title or formal position description; (2) there were strict limitations, such as five-pound
lifting and no casing of mail, which indicated that the claimant would not be able to secure a
position in the community at large with such limited duties; (3) the claimant did not perform any
meaningful tasks in the position; and (4) the job appeared to be temporary in nature.8
The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Albert C. Shadrick decision,9 has been codified at 20 C.F.R. § 10.403. OWCP
first calculates an employee’s wage-earning capacity in terms of percentage by dividing the
employee’s earnings by the current pay rate for the date-of-injury position.10
ANALYSIS
Appellant’s claim was accepted for right thumb sprain and joint derangement of the right
hand.
She was hired as a part-time temporary employee and began working on
October 20, 2002. In determining appellant’s wage-earning capacity, OWCP properly found that
appellant received actual earnings as a part-time temporary nurse 1 for more than 60 days.
Appellant worked in the position effective January 6 until April 3, 2009.11 According to the
evidence of record, the job offer was in accordance with the restrictions provided by the referee
physician Dr. Mandiberg. The Board notes that the position was a part-time temporary position
not to exceed 90 days. A wage-earning capacity may be based on a part-time temporary
position, where as in the present case, the position the employee held when injured was also part

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Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (February 2013).
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Id. at Chapter 2.814.7(a) (February 2013).

7

See A.J., Docket No. 10-619 (issued June 29, 2010).

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Id.

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5 ECAB 376 (1953).

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20 C.F.R. § 10.403(d).

11

See James D. Champlain, 44 ECAB 438, 440-441 (1993).

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time and temporary in nature.12 The issue is whether there was a basis to find the position
worked was not appropriate for a wage-earning capacity determination.
Counsel asserts in his August 9, 2013 request for appeal and March 30, 2014 letter to the
Board that the position was makeshift arguing that it was a special job designed for appellant’s
particular needs, the employing establishment failed to provide a job description, the job did not
exist before or after she was terminated, she did not do the specific job tasks in the compliance
officer’s job, the tasks she performed were performed by no others and that she was not trained
for the compliance officer’s tasks. Counsel did not dispute that the job created for her was
within her physical restrictions. The Board finds that appellant has not established her
assertions. Appellant did not submit sufficient evidence to establish that the modified position
was not reasonably available on the open labor market or could not have been performed by
another employee. There was no evidence establishing that the duties assigned to her were
merely to keep her employed or that the duties and or the position was created especially for her
to fill until such time it could be determined whether she could physically return to another
position or alternative status.13
In reviewing the relevant factors regarding a makeshift position, the Board finds
insufficient evidence to establish the modified temporary position as a nurse 1 in the compliance
office was makeshift. It has an official title and a detailed job description. Ms. Carson indicated
that the specific duties of the October 2008 job offer matched appellant’s permanent restrictions
and that the October 30, 2008 nursing job description was prepared to describe her nurse position
which was created to fill the employing esablishments need and fit her physical requirements.
The position was added to the organizational chart once approved. Additionally, appellant
testified she performed the duty of locating part-time doctors at workstations and documenting
their presence. Ms. Carson noted that appellant was hired to function as a nurse in support
capacity to Ms. Russell, is a compliance officer. She indicated that Ms. Russell has performed
the tasks of the October 30, 2008 job offer and appellant’s job was to support those functions.
Ms. Carson noted the job duties were varied and included verifying the participation of
physicians and was listed in expanded form to include all the possible tasks of that position
which could be asked of appellant within her restrictions. She noted, however, that all possible
duties of the position did not have to be included in appellant’s daily experience on the job and
Ms. Russell may not have had occasion to ask appellant to perform everything on the list, and it
was reasonable that she would not have performed all the duties in the 90-day period in which
she worked.
Counsel further asserts that the job position was for a one handed person and appellant
could not perform nursing duties with one hand. He contended that the restrictions were so
extensive that she could not obtain a nursing job in the general labor market. Counsel also
contended that this case was analogous to A.J.,14 in which the Board determined that the duties
outlined in the limited-duty assignment for a postal clerk were makeshift in nature and were
12

See P.C., Docket No. 13-939 (issued August 27, 2013).

13

See P.L., Docket No. 13-1803 (issued January 15, 2014).

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Supra note 8.

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designed to meet the employee’s particular needs. In A.J., the Board noted that the position did
not have an official title or a formal position description and the job was eliminated when the
employee could no longer perform the duties which suggested that the job was created
specifically for her. Moreover, the strict limitations, such as lifting no more than five pounds
and performing no casing duties, precluded the performance of many regular clerk duties which
would be required in the general labor market. The Board notes that the facts in A.J., can be
distinguished from the present case in that appellant’s position had a functional job description
and was created to fill the employing establishment’s need. Ms. Carson noted that a functional
statement was made to describe appellant’s position and was written by the hiring service,
approved by the employing establishment and placed on its organization chart before it was
offered. The record supports that appellant was hired to function as a nurse in support capacity
to Ms. Russell, a compliance officer. Ms. Russell performed the tasks of the October 30, 2008
job offer and appellant’s job was to support those functions. The job involved meaningful tasks.
The test is not whether the tasks that the employee performs would have been done by someone
else, but instead whether appellant occupied a regular position that would have been performed
by another employee.15 The modified temporary position as a nurse 1 in the compliance office in
this case had meaningful tasks and a detailed job description without overly strict physical
restrictions.
The Board finds that, the modified position as a nurse 1 in the compliance office
performed beginning January 6, 2009 was appropriate for a wage-earning capacity
determination. It was not makeshift. OWCP properly reduced appellant’s compensation based
on actual wages earned in her modified position. The Board finds that it properly reduced
appellant’s benefits based on her actual earnings.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s wage-earning capacity
was represented by her actual earnings commencing January 6, 2009.

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See Jeffrey T. Hunter, 52 ECAB 503 (2001) (where the Board found that the duties of regular employment are
covered by a specific job classification and such duties would have been performed by another employee if the
employee did not perform them).

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ORDER
IT IS HEREBY ORDERED THAT the February 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 29, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, FOOD & DRUG
ADMINISTRATION, Atlanta, GA, Employer
__________________________________________

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

Docket No. 16-1002
Issued: September 23, 2016

Case Submitted on the Record

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

JURISDICTION
On April 11, 2016 appellant filed a timely appeal from a December 4, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
have elapsed from the last merit decision of OWCP dated April 24, 2015, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that his schedule award claim for the left upper extremity
was erroneously calculated due to differences in the fifth and sixth editions of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). He
1

5 U.S.C. § 8101 et seq.

asserts that he is entitled to a schedule award for 24 percent permanent impairment of this
extremity based on his treating physician’s opinion.
FACTUAL HISTORY
On June 30, 2005 appellant, then a 62-year-old resident agent-in-charge, filed an
occupational disease claim (Form CA-2) alleging that on November 23, 2004 he first became
aware of acute glenohumeral arthritis in his right and left shoulders and realized that his
condition was caused or aggravated by his federal employment.2 On January 31, 2005 he
underwent right total shoulder arthroplasty performed by Dr. Xavier A. Duralde, an attending
Board-certified orthopedic surgeon.
On June 29, 2005 appellant filed a schedule award claim (Form CA-7).
On July 18, 2005 OWCP accepted appellant’s occupational disease claim for aggravation
of localized primary osteoarthrosis of the right shoulder. It authorized the January 31, 2005 right
shoulder surgery.
In an August 30, 2005 medical report, Dr. Duralde examined appellant and opined that he
had reached maximum medical improvement (MMI). Utilizing the fifth edition of the A.M.A.,
Guides, he determined that appellant’s right shoulder surgery represented 24 percent impairment
and his right shoulder stiffness constituted an additional 13 percent impairment, totaling 34
percent permanent impairment of the right upper extremity.
On September 29, 2005 Dr. James W. Dyer, a Board-certified orthopedic surgeon and
district medical adviser, reviewed the medical record and Dr. Duralde’s August 30, 2005
findings. Utilizing the A.M.A., Guides, he determined that appellant had 11 percent impairment
based on loss of range of motion (ROM) and 24 percent impairment due to his arthroplasty,
which he combined to calculate 32 percent impairment of the right arm. Dr. Dyer concluded that
he had reached MMI on August 30, 2005, the date of Dr. Duralde’s examination.
In an October 3, 2005 decision, OWCP granted appellant a schedule award for 32 percent
permanent impairment of the right arm, paid during the period August 30, 2005 to July 29, 2007,
for a total of 99.84 weeks of compensation. It found that the weight of the medical evidence
rested with the opinion of Dr. Dyer who used the physical findings by Dr. Duralde.
By letter dated February 8, 2006, OWCP expanded the acceptance of appellant’s claim
for bilateral aggravation of localized primary shoulder osteoarthrosis.
In a July 3, 2006 letter, appellant requested reconsideration regarding OWCP’s schedule
award decision. In an August 18, 2006 decision, OWCP denied further merit review of
appellant’s claim. It found that he did not submit any medical evidence to establish that he had
greater permanent impairment of the right arm.

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Appellant retired from the employing establishment effective July 9, 2005.

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In an August 23, 2006 letter, Dr. Duralde examined appellant and found that he had
reached MMI on that date regarding arthritis in his left shoulder. He determined that appellant
had nine percent impairment of the left upper extremity due to loss of ROM under the fifth
edition of the A.M.A., Guides. Dr. Duralde concluded that based on his future need for
replacement surgery, an additional 24 percent impairment would be included in his final
impairment rating.
On September 22, 2006 Dr. Howard P. Hogshead, a Board-certified orthopedic surgeon
and district medical adviser, reviewed the medical record and Dr. Duralde’s August 23, 2006
findings. Dr. Hogshead determined that appellant’s loss of ROM resulted in seven percent
permanent impairment under the fifth edition of the A.M.A., Guides. He concluded that
appellant had reached MMI on August 23, 2006, the date of Dr. Duralde’s impairment
evaluation.
In a decision dated August 17, 2007, OWCP granted appellant a schedule award for
seven percent permanent impairment of the left arm based on Dr. Hogshead’s impairment rating.
The period of the award ran from July 30 to December 29, 2007 for a total of 21.84 weeks of
compensation.
On October 21, 2013 appellant underwent an authorized left total shoulder arthroplasty
performed by Dr. Duralde. In a May 7, 2014 medical report, Dr. Duralde examined appellant
and opined that he had 24 percent impairment of the left arm under the sixth edition of the
A.M.A., Guides. He concluded that appellant had reached MMI following his work-related
injury and subsequent surgery.
On June 24, 2014 appellant filed a claim for an additional schedule award (Form CA-7).
On July 1, 2014 another district medical adviser reviewed the medical record. The
district medical adviser also reviewed Dr. Duralde’s May 7, 2014 findings. The report noted
appellant’s previous schedule award for seven percent impairment of the left upper extremity and
found that he had an additional 17 percent impairment, totaling 24 percent of the left upper
extremity impairment. The report concluded that he had reached MMI on May 7, 2014.
In a July 15, 2014 decision, OWCP granted appellant a schedule award for an additional
17 percent permanent impairment to the left arm, totaling 24 percent permanent impairment of
the left upper extremity. The award ran for 53.04 weeks from May 7, 2014 to May 13, 2015 and
was based on the impairment ratings of Dr. Duralde and the district medical adviser.
On July 28, 2014 appellant requested an oral hearing before an OWCP hearing
representative regarding the July 15, 2014 schedule award decision.
In an undated medical report, Dr. Duralde noted his previous 9 percent and 24 percent
left arm impairment ratings. He combined these impairment ratings to calculate 31 percent left
upper extremity impairment or 19 percent whole person impairment.

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By decision dated April 14, 2015, an OWCP hearing representative set aside the July 15,
2014 decision3 and remanded the case for a district medical adviser to review Dr. Duralde’s
undated report and calculate appellant’s permanent impairment under the sixth edition of the
A.M.A., Guides, after which OWCP should issue a de novo decision on his schedule award
claim.
On April 17, 2015 Dr. Hogshead reviewed the medical record and Dr. Duralde’s undated
report. He noted that the October 21, 2013 total left shoulder arthroplasty provided a good
result. Dr. Hogshead related that a prior district medical adviser’s 24 percent left upper
extremity impairment rating was correct based on this final good result. Dr. Hogshead, however,
found that Dr. Duralde’s 31 percent left upper extremity impairment rating was not correct. He
should not have combined his 24 percent and 94 percent left upper extremity impairment ratings
as appellant had a good surgical result based on his current level of function. Dr. Hogshead
concluded that he had no additional left upper extremity impairment.
By decision dated April 24, 2015, OWCP denied appellant’s claim for an additional
schedule award for the left arm based on Dr. Hogshead’s April 17, 2015 opinion.
By letter dated July 15, 2015, appellant requested reconsideration of this decision.
Hospital records addressed appellant’s left shoulder condition, October 21, 2013 total left
shoulder arthroplasty, and discharge instructions.
A left shoulder x-ray report dated October 21, 2013 from Dr. Eric C. McClees, a Boardcertified radiologist, provided an impression of shoulder prosthesis on the left in good alignment
and position. No acute fractures or dislocations were identified.
In a July 1, 2015 report, Dr. Duralde provided appellant’s history and findings on
physical and x-ray examination. He reported that appellant was clinically doing very well status
post his 2005 total right shoulder arthroplasty and 2013 total left shoulder arthroplasty.
Dr. Duralde noted that he had signs of weakness on the right side consistent with rotator cuff
deterioration. The radiolucent line on the left glenoid involved only one peg. The radiolucent
line around the inferior Paganini was unchanged and did not appear to be progressive.
Dr. Duralde concluded that appellant had pain in the shoulder joint region and recommended
total shoulder joint replacement.
Appellant also resubmitted Dr. Duralde’s undated report which stated that appellant had
31 percent left upper extremity impairment or 19 percent whole person impairment.
By decision dated December 4, 2015, OWCP denied further merit review of appellant’s
claim. It found that the evidence submitted was repetitious, irrelevant, or immaterial.

3

The record indicates that appellant was paid schedule award compensation for the previously awarded 17
percent left upper extremity impairment.
4

It appears that Dr. Hogshead inadvertently stated that Dr. Duralde found seven percent left upper extremity
impairment rating rather than nine percent as he noted a review of Dr. Duralde’s undated report which stated that
appellant had nine percent impairment of the left upper extremity.

4

LEGAL PRECEDENT
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.5 Section 10.608(b) of OWCP’s regulations provide that a timely
request for reconsideration may be granted if OWCP determines that the claimant has presented
evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).6 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.7 Section 10.608(b) provides that when a request for
reconsideration is timely but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.8
ANALYSIS
On July 15, 2015 appellant requested reconsideration of the April 24, 2015 decision that
denied his claim for an additional schedule award for the left upper extremity. The underlying
issue on reconsideration is medical in nature, whether appellant had a greater percentage of left
arm permanent impairment than previously awarded.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, nor did he advance a relevant legal argument not previously
considered.
The Board further finds that appellant did not submit any relevant or pertinent new
evidence not previously considered. The hospital records and Dr. McClees’ left shoulder x-ray
report dated October 21, 2013 and Dr. Duralde’s July 1, 2015 report addressed appellant’s left
shoulder condition, October 21, 2013 total left shoulder arthroplasty, and discharge instructions.
This evidence did not provide an opinion as to whether he had left upper extremity impairment
greater than the 24 percent already awarded. The Board has held that the submission of evidence
which does not address the particular issue involved in the case does not constitute a basis for
reopening the claim.9
Appellant also resubmitted an undated report from Dr. Duralde which reiterated that
appellant had 31 percent left arm impairment or 19 percent whole person impairment. However,

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.608(a).

7

Id. at § 10.606(b)(3).

8

Id. at § 10.608(b).

9

D’Wayne Avila, 57 ECAB 642 (2006).

5

the Board has held that evidence that repeats or duplicates evidence already in the case record
has no evidentiary value and does not constitute a basis for reopening a case.10
The Board finds, therefore, that the hospital records and the reports of Drs. McClees and
Duralde are insufficient to warrant further merit review of the claim.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal, appellant argues the merits of his claim. As noted above, the Board lacks
jurisdiction to review the merits of this case.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 4, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2016
Washington, DC

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

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

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

10

James W. Scott, 55 ECAB 606 (2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Temple, TX, Employer
__________________________________________

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

Docket No. 09-1388
Issued: March 19, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 5, 2009 appellant filed a timely appeal from a December 9, 2008 decision of the
Office of Workers’ Compensation Programs terminating her wage-loss compensation and a
February 9, 2009 decision denying her request for a review of the written record. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
wage-loss compensation effective December 21, 2008; and (2) whether it abused its discretion in
denying her request for a review of the written record.
FACTUAL HISTORY
On October 17, 2004 appellant, then a 38-year-old vocational nurse, filed a claim for a
traumatic injury alleging that on October 14, 2004 she slipped on a wet floor and injured her left
shoulder, low back, right hip and knee and head. The Office accepted her claim for aggravation

of a cervical disc herniation. In a July 12, 2005 report, Dr. Robert Chouteau, a Board-certified
orthopedic surgeon and an Office referral physician, reviewed the medical history, provided test
results and findings on physical examination. Based on the report of Dr. Chouteau, the Office
accepted the conditions of cervical spondylosis, lumbar and thoracic strain and sprain, lesions of
the median and ulnar nerves in the right wrist and elbow, chondromalacia of the right patella and
a torn medial meniscus and a left shoulder impingement syndrome. Effective January 27, 2005,
appellant was placed on the periodic compensation rolls in receipt of temporary total disability.
In June 27 and September 26, 2005 reports, Dr. Frederick D. Todd, II, an attending
Board-certified neurologist, provided a history of appellant’s condition and findings on physical
examination. He noted that an October 2004 magnetic resonance imaging scan revealed a
central disc herniation at C3-4 with compression on her spinal cord. On October 20, 2005
appellant underwent cervical spine surgery performed by Dr. Todd. On April 26, 2006 Dr. Todd
advised that appellant had complaints of back pain and had been referred to a pain management
specialist. On December 6, 2006 he stated that appellant had no evidence of cervical
radiculopathy or right upper extremity median or ulnar nerve neuropathies.
In an April 13, 2006 report, Dr. Charles D. Mitchell, a Board-certified orthopedic surgeon
and an Office referral physician, reviewed the medical history and provided findings on physical
examination. He found that there were no medical records available for the six months following
appellant’s surgery by Dr. Todd but it appeared that she had not undergone any comprehensive
postoperative physical rehabilitation.
In a September 17, 2007 form report, Dr. Lorin J. Freedman, an attending Board-certified
neurologist, stated that he had not discussed appellant’s usual occupation with her so he could
not assess whether she could resume work or at what level.
In a November 12, 2007 report, Dr. Alexander N. Doman, a Board-certified orthopedic
surgeon and an Office referral physician, reviewed appellant’s medical history and test results
and provided findings on physical examination. Appellant had a good range of motion of the
cervical spine and excellent shoulder range of motion. Rotator cuff strength was normal
bilaterally. There was no effusion in appellant’s right knee. Appellant was diffusely tender in a
nonanatomical distribution over the right proximal tibia shaft. Collateral ligaments were intact.
Anterior cruciate ligament testing was normal. Reflexes were normal in the upper and lower
extremities. Straight leg raising was negative. Appellant had marked nonorganic physical
findings with complaints of severe back pain with simple attempts to flex the left and right knees
to as little as 40 degrees while in the prone position. X-rays of the lumbar spine, left shoulder
and right knee were normal. X-rays of the cervical spine revealed solid fusion from C3-5 with
plate fixation that was stable anteriorly at C3-4. Dr. Doman stated that appellant’s right knee
condition was fully resolved. Appellant’s subjective complaints were out of proportion to the
fact that there were no objective findings of a continuing right knee condition. Dr. Doman stated
his opinion that appellant was intentionally exaggerating her complaints for purposes of
secondary gain. Appellant’s complaints of excruciating back pain with simple attempts to flex
the knee to as little as 40 degrees while in the prone position had no organic basis. Dr. Doman
found that appellant’s cervical spine condition had resolved and she had an excellent result
following her anterior cervical fusion surgery. Appellant’s lumbar strain, chondromalacia of the
right patella, right medial meniscus tear, ulnar and median nerve lesions and left shoulder

2

condition had resolved. Dr. Doman opined that appellant had no residuals of her October 14,
2004 employment injury. The only diagnosis related to her employment injury was malingering
and Dr. Doman recommended a psychological evaluation.
By letter dated September 17, 2008, the Office advised appellant that it proposed to
terminate her wage-loss compensation on the grounds that the weight of the medical evidence, as
represented by the opinion of Dr. Doman, established that she had no remaining disability or
medical condition causally related to her October 14, 2004 employment injury.
In a work capacity report dated June 4, 2008, Dr. Marsha Thigpen, an attending physician
whose specialty is not indicated, stated that appellant continued to have symptoms of cervical
and lumbar disc disease. She advised that appellant was totally disabled for an indefinite period
of time. Dr. Thigpen did not indicate whether she had examined appellant and provided no
findings on physical examination.
By decision dated December 9, 2008, the Office terminated appellant’s wage-loss
compensation effective December 21, 2008.
In an application received by the Office on January 14, 2009, appellant requested a
review of the written record. She contended that Dr. Todd found her to be totally disabled.
In a February 9, 2009 decision, the Office denied appellant’s request for a review of the
written record on the grounds that it was not timely filed within 30 days of the December 9, 2008
decision. It exercised its discretion and determined that the issue in the case could be resolved
equally well through a request for reconsideration and the submission of additional medical
evidence.1
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 The Office may not terminate compensation without
establishing that the disability ceased or that it is no longer related to the employment.3 Its
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.4 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability. To terminate
1

The Board notes that, while this appeal was pending, the Office issued a May 6, 2009 decision denying
appellant’s request for reconsideration of the December 9, 2008 termination decision. Because the December 9,
2008 decision was on appeal to the Board when the Office issued its May 6, 2009 decision, that decision is null and
void. See Douglas E. Billings, 41 ECAB 880 (1990) (holding that the only decisions of the Office which are null
and void, because they were issued while the case was on appeal to the Board, are those decisions that change the
status of the decision on appeal).
2

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
3

J.M., 58 ECAB 478 (2007); Anna M. Blaine, 26 ECAB 351 (1975).

4

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

3

authorization for medical treatment, the Office must establish that a claimant no longer has
residuals of an employment-related condition that require further medical treatment.5
ANALYSIS -- ISSUE 1
Appellant’s claim for an injury on October 14, 2004 was accepted for aggravation of a
displaced cervical disc, cervical spondylosis, a lumbar and thoracic strain and sprain, lesions of
the median and ulnar nerves in the right wrist and elbow, chondromalacia of the right patella and
a torn medial meniscus and a left shoulder impingement syndrome. On October 20, 2005
appellant underwent cervical spine surgery performed by Dr. Todd. On April 26, 2006 Dr. Todd
noted that appellant had continuing complaints of back pain and was referred to a pain
management specialist. On December 6, 2006 he stated that appellant had no evidence of
cervical radiculopathy or right upper extremity median or ulnar nerve neuropathies. There are no
medical reports from Dr. Todd following her surgery that provide any findings on physical
examination or an opinion regarding whether she had continuing disability or medical conditions
causally related to her employment injury.
On April 13, 2006 Dr. Mitchell noted that there were no medical records available for the
six months following appellant’s surgery but it appeared that she had not undergone any
comprehensive postoperative physical rehabilitation. He did not address the issue of whether
appellant had any residuals of her October 14, 2004 employment injury. On September 17, 2007
Dr. Freedman stated that he was not able to assess appellant’s capacity for work. Therefore, his
report is not relevant to the issue of continuing work-related disability. On June 4, 2008
Dr. Thigpen stated that appellant continued to have symptoms of cervical and lumbar disc
disease. She indicated that appellant was totally disabled for an indefinite period of time.
However, Dr. Thigpen did not explain that she had examined appellant and made no findings on
physical examination in support of her opinion. Therefore, her opinion of appellant’s medical
condition is of diminished probative value. Lacking objective findings on physical examination,
Dr. Thigpen’s opinion is not sufficient to establish that appellant has any continuing disability or
medical condition causally related to her accepted medical conditions.
Dr. Doman reviewed appellant’s medical history, diagnostic results and provided findings
on physical examination. Appellant had good range of motion of the cervical spine and excellent
shoulder range of motion. Rotator cuff strength was normal bilaterally. There was no effusion
in appellant’s right knee. Dr. Doman noted diffuse tenderness in a nonanatomical distribution
over the right proximal tibia shaft. Collateral ligaments were intact and the anterior cruciate
ligament testing was normal. Reflexes were normal in the upper and lower extremities. Straight
leg raising was negative. X-rays of the lumbar spine, left shoulder and right knee were normal.
X-rays of the cervical spine revealed a solid fusion from C3-5 with plate fixation that was stable
anteriorly at C3-4. Dr. Doman stated that appellant’s right knee condition was fully resolved.
Appellant’s subjective complaints were out of proportion to the fact that there were no objective
findings of a continuing right knee condition.

5

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

4

Dr. Doman advised that appellant was exaggerating her complaints as she described
excruciating back pain with simple attempts to flex the knee while in the prone position. He
stated that there was no organic basis for such complaints. Dr. Doman found that appellant’s
accepted cervical spine condition, lumbar strain, chondromalacia of the right patella, right medial
meniscus tear, ulnar and median nerve lesions and left shoulder condition had resolved and that
she had no residuals of her October 14, 2004 employment injury. The report of Dr. Doman is
based upon a complete and accurate factual and medical background and detailed findings on
physical examination. Dr. Doman is a Board-certified orthopedic surgeon, an appropriate field
for evaluating appellant’s accepted upper and lower extremity conditions. The Board finds that
Dr. Doman’s thorough and well-rationalized report established that appellant had no continuing
disability or medical condition causally related to her October 14, 2004 employment injury.
Accordingly, the Office met its burden of proof to terminate her wage-loss compensation
effective December 21, 2008.
On appeal appellant contends that the reports of Dr. Todd, Dr. Freedman and Dr. Thigpen
establish that she remains totally disabled due to her accepted conditions. As noted, the reports
of these physicians are of reduced probative value to establish that she has continuing disability
causally related to her accepted medical conditions.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Federal Employees’ Compensation Act, concerning a
claimant’s entitlement to a hearing before an Office hearing representative, states: “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 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.”6 A hearing is a review of an adverse decision by a hearing
representative. Initially, the claimant can choose between two formats: an oral hearing or a
review of the written record. In addition to the evidence of record, the claimant may submit new
evidence to the hearing representative.7 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
the hearing is sought.8 A claimant is not entitled to a hearing or a review of the written record if
the request is not made within 30 days of the date of the decision for which the hearing is
sought.9 The Office has discretion, however, to grant or deny a request that is made after this 30day period.10 In such a case, the Office will determine whether a discretionary hearing should be
granted and, if not, will so advise the claimant with reasons.11
6

5 U.S.C. § 8124(b)(1).

7

20 C.F.R. § 10.615.

8

Id. at § 10.616(a).

9

James Smith, 53 ECAB 188 (2001).

10

20 C.F.R. § 10.616(b).

11

James Smith, supra note 9.

5

ANALYSIS -- ISSUE 2
Appellant’s request for a review of the written record was received by the Office on
January 14, 2009, more than 30 days after the Office’s December 9, 2008 decision. Therefore,
she was not entitled to a review of the written record as a matter of right. The Office exercised
its discretion and determined that the issue in the case, whether appellant had any remaining
disability or medical condition causally related to her October 14, 2004 employment injury,
could be resolved through a request for reconsideration and the submission of additional
evidence. The Board finds no evidence that the Office abused its discretion in denying her
untimely request for a review of the written record in its February 9, 2009 decision.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s wageloss compensation effective December 21, 2008. The Board further finds that the Office did not
abuse its discretion in denying her request for a review of the written record.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 9, 2009 and December 9, 2008 are affirmed.
Issued: March 19, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, RICHMOND
PROCESSING & DISTRIBUTION CENTER,
Sandston, VA, Employer
__________________________________________

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

Docket No. 17-1517
Issued: March 6, 2018

Case Submitted on the Record

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

JURISDICTION
On July 3, 2017 appellant filed a timely appeal from a June 13, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an emotional
condition in the performance of duty causally related to factors of his federal employment.

1
Appellant timely requested oral argument pursuant to section 501.5(b) of Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). By order dated December 18, 2017, the Board exercised its discretion and denied the request,
finding that the arguments on appeal could adequately be addressed based on the case record. Order Denying
Request for Oral Argument, Docket No. 17-1517 (issued December 18, 2017).
2

5 U.S.C. § 8101 et seq.

On appeal appellant maintains that the medical evidence submitted is sufficient to
establish his claim.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as
presented in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On May 30, 2013 appellant, then a 56-year-old supervisor of maintenance operations
(SMO), filed an occupational disease claim (Form CA-2) alleging that working alone on
weekends and at night with an understaffed, unqualified, and untrained workforce caused workrelated stress and anxiety disorders. He indicated that he first became aware of his illness on
May 14, 2013 and of its relationship to his federal employment on May 28, 2013. Appellant’s
regular work hours on Tour 1 were from 9:45 p.m. to 6:45 a.m. Sunday through Thursday. In an
attached narrative statement, he related that, from January 14 to February 24, 2013, he was the
only supervisor on Tour 1 over the weekends when he averaged 10.5 hours daily, without a lunch
break, and that he also worked long hours during the regular work week. Appellant indicated
that he had similar work-related stress in 2005.
In May 2013 the employing establishment referred appellant to the District Reasonable
Accommodation Committee (DRAC) to consider whether an accommodation for his medical
condition was appropriate. The record also includes evidence concerning an investigation and
appellant’s subsequent removal for an incident when he punched a toolbox, and other incidents
when he allegedly threatened acts of violence and made comments about shooting or killing.
This included a May 24, 2013 notice of enforced leave that described a postal inspector interview
with appellant. The enforced leave was finalized on July 25, 2013.
The relevant medical evidence includes a March 27, 2013 report in which Edward A.
Peck, III, Ph.D., noted performing psychological testing. He reported a history that appellant had
service-related knee and head injuries, and claimed disability dating to 2005 when appellant had
mental health treatment.4 Following testing, Dr. Peck indicated that there was a consistent
pattern of reporting from others which indicated that there was an elevated probability that
appellant displayed mental health and/or behavioral issues which could lead to an increased
potential for disruption in the workplace. He advised that appellant should not return to work
due to this threat potential, and opined that there was no indication that his work itself caused his
mental health condition to develop and/or worsen. Dr. Peck recommended anger management
therapy.
In a May 30, 2013 report, Dr. Shireesha Narla, a Board-certified internist, diagnosed
hypertension, diabetes, hyperlipidemia, and generalized anxiety disorder and possible post3

Docket No. 16-1443 (issued February 23, 2017).

4

The record includes information regarding appellant’s 2005 psychiatric diagnosis. By decision dated
July 20, 2006, OWCP denied a claim filed on September 16, 2005, adjudicated under File No. xxxxxx809. The
instant case was adjudicated by OWCP under File No. xxxxxx865.

2

traumatic stress disorder (PTSD). She indicated that a mental health clinic should assess
appellant’s needs for his psychiatric disorders and that his medical diagnoses required
monitoring and medication.
In a report dated July 24, 2013, Dr. Lajuana M. Collins-Morgan, a Board-certified
psychiatrist, noted that appellant was hospitalized from July 15 to 20, 2013.5 She diagnosed
bipolar disorder, generalized anxiety disorder, PTSD (provisional), prescribed medication, and
advised that appellant was incapacitated from February 23, 2013 to present, noting that appellant
had not fully recovered and could not return to work.
By decision dated December 4, 2013, OWCP denied the claim, finding that appellant did
not establish a compensable factor of employment.
Appellant timely requested a hearing before a representative of OWCP’s Branch of
Hearings and Review. OWCP received an undated report from Dr. Suresh Gharse, a psychiatrist,
who provided a fitness-for-duty examination. Dr. Gharse noted appellant’s 2005 psychiatric
history and advised that appellant was stressed because he felt he was always short-staffed and
had to run around to get work done, which was beyond his capacity. He maintained that
appellant was losing control, which was compromising his ability to deal with work in a rational
manner, and that he needed to be transferred to another area with less stress. Dr. Gharse noted
that appellant felt that others were getting away with shady performance and strange practices
and that he denied making threats to anyone. He diagnosed adjustment disorder with anxiety and
possible mood or bipolar disorder. Dr. Gharse advised that appellant was not fit to work at the
current location, but could work in another area of the employing establishment where he would
feel that he could handle the stress and work, and management could realistically address the
situation with, for example, increased manpower or increased training. He opined that appellant
did not pose a clear and direct threat to an identifiable target. Dr. Gharse concluded that
appellant was suffering from work-related anxiety and angrily reacting to stress, noting that
appellant was feeling overwhelmed and cornered by his coworkers and supervisors. He
indicated that appellant clearly needed psychotherapy and perhaps medication along with
appropriate changes at work.
On November 3, 2014 an OWCP hearing representative set aside the December 4, 2013
decision and remanded the case for OWCP to obtain information from the employing
establishment regarding appellant’s supervisory duties and staffing.
The employing
establishment furnished additional information, including a lengthy statement from J.Y.,
maintenance manager. By decision dated May 4, 2015, OWCP denied the claim finding that, as
appellant had not established a compensable employment factor, he did not sustain an injury in
the performance of duty.
On May 18, 2015 appellant requested a hearing. On June 5, 2015 he requested subpoenas
for employing establishment records and for personal testimony of named employing
establishment personnel. In a January 5, 2016 letter, an OWCP hearing representative denied
appellant’s subpoena requests. In a February 22, 2016 decision, she modified the May 4, 2014
decision, finding that appellant had established that he worked as the lone supervisor on some
5

The record includes discharge plans from this hospitalization.

3

occasions. The hearing representative reviewed the medical evidence of record, but denied the
claim because the evidence did not establish that his diagnosed condition was caused by that one
accepted employment factor. She also advised that appellant could appeal the decision if he
disagreed with the denial of the requested subpoenas.
By February 23, 2017 decision, the Board found that OWCP properly denied appellant’s
subpoena request.6 The Board, however, set aside OWCP’s February 22, 2016 denial of the
claim, and remanded the case to OWCP to analyze and develop the medical evidence. OWCP
found that the case was not in posture for decision with respect to the emotional condition issue,
as the evidence of record established two compensable factors of employment -- that he
frequently had to work as the sole SMO on busy Tour 1, and that Tour 1 was understaffed. The
Board indicated that OWCP must base its decision on an analysis of the medical evidence as it
related to those two factors. After such further development, OWCP was to issue a de novo
decision on the merits of appellant’s claim.
Appellant did not submit additional evidence after OWCP’s February 22, 2016 decision.
By decision dated June 13, 2017, OWCP found the medical evidence of record
insufficient to establish that appellant’s claimed emotional condition was causally related to the
accepted compensable factors of employment.7
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or stress-related
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to his condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to his or her stress-related
condition.8 If a claimant does implicate a factor of employment, OWCP should then determine
whether the evidence of record substantiates that factor.9 When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.10
Causal relationship is a medical issue, and the medical evidence required to establish
causal relationship is rationalized medical evidence.11 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
6

Supra note 3.

7

OWCP initially denied the claim by decision dated May 24, 2017. However, as appeal rights were not included
with the May 24, 2017 decision, OWCP reissued it on June 13, 2017.
8

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

9

Dennis J. Balogh, 52 ECAB 232 (2001).

10

Id.

11

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

4

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.12 Neither the mere fact that a disease or condition manifests itself during a period
of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.13
ANALYSIS
Appellant, who alleged that employment factors caused an emotional condition, has
established two compensable factors of employment. The factors are that he frequently had to
work as the sole SMO on busy Tour 1, and that Tour 1 was understaffed. The medical evidence
of record, therefore, must be analyzed as it relates to these two factors.14
In his March 27, 2013 report, Dr. Peck opined that work did not cause appellant’s mental
health condition. Neither Dr. Narla, nor Dr. Collins-Morgan provided an opinion on the cause of
appellant’s diagnosed emotional condition. The Board has long 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.15 These opinions are, therefore, insufficient to meet
appellant’s burden of proof to establish that his emotional condition is caused by the two
accepted employment factors.
Nonetheless, the Board finds that this case is not in posture for decision. In his report,
Dr. Gharse, who diagnosed adjustment disorder with anxiety and possible mood or bipolar
disorder, noted that appellant indicated that he was short-staffed and was forced to work beyond
his capacity. He indicated that appellant could not work at the current location, but could work
in another area where he would feel less stressed and that management could realistically address
the situation with, for example, increased manpower or increased training. Dr. Gharse opined
that appellant was suffering from work-related anxiety and indicated that he clearly needed
psychotherapy and perhaps medication along with appropriate changes at work.
The Board finds that Dr. Gharse provided an affirmative opinion on causal relationship
and accurately identified accepted compensable employment factors. While Dr. Gharse’s
opinion is not sufficiently rationalized to meet appellant’s burden of proof, it is sufficient to
require further development of the medical evidence.16
It is well established that proceedings under FECA are not adversarial in nature and
OWCP is not a disinterested arbiter.17 While the claimant has the burden of proof to establish
12

Supra note 8; Gary L. Fowler, 45 ECAB 365 (1994).

13

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

14

Supra note 9.

15

Willie M. Miller, 53 ECAB 697 (2002).

16

See J.J., Docket No. 16-1580 (issued April 4, 2017).

17

See Vanessa Young, 56 ECAB 575 (2004).

5

entitlement to compensation, OWCP shares responsibility in the development of the evidence
and to see that justice is done.18 Thus, the Board will remand the case to OWCP for further
development to obtain a rationalized medical opinion as to whether appellant’s emotional
condition is causally related to the accepted compensable employment factors. After this and
such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 13, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: March 6, 2018
Washington, DC

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

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

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

18

Supra note 9.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, VICKERY STATION,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1204
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On August 3, 2021 appellant filed a timely appeal from a March 29, 2021 merit decision
and a July 27, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment; and (2) whether

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 27, 2021 decision, appellant submitted additional evidence to the Board.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 28, 2021 appellant, then a 69-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed bilateral wrist pain due to factors of his federal
employment. He noted that an attached statement explained how his employment factors caused
his condition, however, no such statement was contained in the record. Appellant noted that he
first became aware of his claimed injury on December 16, 2021 and realized its relation to his
federal employment on January 26, 2021.3 On the reverse side of the claim form, his supervisor,
M.J., indicated that appellant’s work was modified so that he did not have to lift items over 10
pounds and that he was attending physical therapy daily. The employing establishment challenged
appellant’s claim because appellant did not submit any factual or medical documentation.
In a development letter dated February 5, 2021, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP requested additional information from the employing establishment, including
comments from a knowledgeable supervisor and an explanation of appellant’s work activities. It
afforded both parties 30 days to respond.
A January 26, 2021 report from Dr. Juan Zamora, a Board-certified physician specializing
in family medicine, related appellant’s history of injury. Appellant awoke on December 16, 2020
with sharp pain in his left wrist and continued to experience frequent pain and discomfort
extending into his middle fingers. A similar pattern of pain started in his right wrist on
December 30, 2020. Appellant also began to experience right elbow pain on January 4, 2021.
Pain in each of these areas increased with activity. Dr. Zamora opined that appellant’s condition
was work related and recommended diagnostic testing. He diagnosed unspecified sprains of the
right elbow and both wrists.
On February 9, 2021 appellant responded to OWCP’s development questionnaire, noting
that he worked limited duty and retired from the employing establishment on February 1, 2021.
He indicated that his responses to OWCP’s remaining questions were contained in an attached
statement, however, no such statement is found in the record.
Appellant underwent bilateral wrist x-rays and a magnetic resonance imaging (MRI) scan
on February 10, 2021. The x-ray of his left wrist revealed severe triscaphe and mild
trapeziometacarpal osteoarthritis and a one millimeter ulnar positive variance indicating possible
ulnar impaction syndrome or triangular fibrocartilage complex (TFCC) tears. The x-ray of
appellant’s right wrist revealed severe triscaphe and mild radiocarpal and trapeziometacarpal
osteoarthritis. The MRI scan of his left wrist demonstrated tricompartmental wrist effusions,
chondromalacia within the lunate and distal ulna, which could relate to ulnar impaction syndrome
and/or osteoarthritis, severe triscaphe and mild-to-moderate trapeziometacarpal osteoarthritis,
3

A January 20, 2021 notice of separation indicated that appellant retired from the employing establishment on
January 31, 2021.

2

increased signal within the TFCC compatible with either a TFCC tear or TFCC degeneration, and
mild generalized extensor tenosynovitis. The MRI scan of appellant’s right wrist demonstrated
mild generalized extensor tenosynovitis with grade 1 strain of the extensor carpi ulnaris tendon,
tricompartmental wrist effusions, severe triscaphe and mild trapeziometacarpal osteoarthritis, and
increased signal within the TFCC indicative of either a TFCC tear or TFCC degeneration .
In a February 23, 2021 report, Dr. Zamora reviewed the February 10, 2021 x-ray and MRI
scans and diagnosed chondromalacia, osteoarthritis, and TFCC degeneration, possibly with tears.
He opined that appellant’s conditions were due to the natural wear and tear of the body but were
aggravated by his 42 years of work for the employing establishment. Dr. Zamora advised appellant
to begin a regimen of physical rehabilitation.
By decision dated March 29, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence submitted was insufficient to establish causal relationship
between his diagnosed conditions and the accepted factors of his federal employment.
Appellant subsequently submitted an undated statement responding to OWCP’s initial
development questionnaire. He described his employment activities, including daily sorting and
delivering of mail and parcels weighing up to 70 pounds and carrying up to 35 pounds of letters,
flats, and small parcels in a satchel carried on left shoulder such that weight was almost entirely
on his left shoulder and arm. Appellant noted that he had been under lifting restrictions at work
since July 2020 due to a left arm injury. He compensated for his left arm injury by doing more
work with his right arm. Appellant’s left wrist and hand pain began during the night on
December 16, 2020, and he reported it to his station manager, D.D, the next day. Similar pain
began in his right wrist on December 30, 2020 and in his right arm and elbow on January 4, 2021.
Appellant experienced greater pain and discomfort during periods of activity. He reported this
history to his manager, M.J., on January 13 and 15, 2020. Appellant’s activities outside of work
consisted mainly of listening to music and watching movies. He believed that his symptoms were
indicative of repetitive motion injuries due to the nature of his work for the employing
establishment.
OWCP received February 23, 2021 report from Dr. Zamora in which he again reviewed
the February 10, 2021 x-rays and MRI scans and diagnosed chondromalacia, osteoarthritis, and
TFCC degeneration, possibly with tears. Dr. Zamora opined that appellant’s conditions were due
to the natural wear and tear of the body but were aggravated by his 42 years of work at the
employing establishment. Specifically, he explained that appellant’s work duties, including
carrying and handling heavy loads, sorting and casing mail, repetitively twisting at the wrist to
open mailboxes, and repetitively locking and unlocking his work vehicle throughout the day,
aggravated his conditions. Dr. Zamora advised that appellant begin a regimen of physical
rehabilitation.
On April 28, 2021 appellant requested reconsideration. In support of his request, he
submitted an April 27, 2021 statement, in which he contended that his more than 42 years of
service to the employing establishment, including a great deal of overtime, directly contributed to
his diagnosed conditions. Appellant noted that, as a result of a previously accepted left arm injury,
assigned OWCP File No. xxxxxx014, he had been restricted to eight hours of work per day during
the latter half of 2020. Finally, he argued that the medical documentation proved causal

3

relationship between his diagnosed medical conditions and the accepted factors of his federal
employment.
By decision dated July 27, 2021, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors. 8
Causal relationship is a medical question that requires rationalized medical opin ion
evidence to resolve the issue. 9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. 10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

4

Supra note 1.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018).

4

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment.
In his January 26, 2021 report, Dr. Zamora diagnosed unspecified sprains of the right
elbow and both wrists and opined that appellant’s condition was work related. Similarly, in a
February 23, 2021 report, he diagnosed chondromalacia, osteoarthritis, and TFCC degeneration,
possibly with tears, and opined that appellant’s conditions were due to the natural wear and tear of
the body, but were aggravated by appellant’s 42 years of work for the employing establishment.
While he provided an affirmative opinion suggestive of causal relationship, Dr. Zamora did not
offer medical rationale sufficient to explain why he believes appellant’s employment duties could
have resulted in or contributed to his diagnosed conditions. Without identifying specific
employment duties or explaining how they caused or aggravated app ellant’s conditions,
Dr. Zamora’s letter is of limited probative value and is insufficient to meet appellant’s burden of
proof.12
In a separate February 23, 2021 report, Dr. Zamora repeated the above diagnoses and again
opined that appellant’s conditions were due to the natural wear and tear of the body , but were
aggravated by appellant’s 42 years of work for the employing establishment. Specifically, he
explained that appellant’s work duties, including carrying and handling heavy loads, sortin g and
casing mail, repetitively twisting at the wrist to open mailboxes, and repetitively locking and
unlocking his work vehicle throughout the day, aggravated his conditions. However, Dr. Zamora
did not explain how any of these described employment activities caused appellant’s diagnosed
chondromalacia, osteoarthritis, and TFCC degeneration. To be of probative medical value, a
medical opinion must explain how, physiologically, the movements involved in the employment
activities caused or contributed to the diagnosed conditions. 13 As such, Dr. Zamora’s report is
insufficient to establish appellant’s claim.
The remaining medical evidence consisted of bilateral x-ray and MRI scans of appellant’s
wrists. The Board has held, however, that diagnostic testing reports, standing alone, lack probative
value on the issue of causal relationship as they do not address the relationship between the
accepted employment factors and a diagnosed condition. 14 For this reason, this evidence is also
insufficient to meet appellant’s burden of proof.

11

Id.; Victor J. Woodhams, supra note 8.

12

See A.P., Docket No. 19-0224 (issued July 11, 2019).

13

A.W., Docket No. 19-0327 (issued July 19, 2019); M.D., Docket No. 18-0195 (issued September 13, 2018);
Jimmie H. Duckett, 52 ECAB 332 (2001).
14

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

5

As appellant has not submitted rationalized medical evidence sufficient to establish a
medical condition causally related to the accepted factors of his federal employment, the Board
finds that he has not met his burden of proof. 15
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 16
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.17
A request for reconsideration must be received by OWCP within one year of the date of
OWCP decision for which review is sought. 18 If it chooses to grant reconsideration, it reopens and
reviews the case on its merits. 19 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 20

15

See T.J., Docket No. 19-1339 (issued March 4, 2020); F.D., Docket No. 19-0932 (issued October 3, 2019); D.N.,
Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued December 31, 2018).
16

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
17

20 C.F.R. § 10.606(b)(3); see L.D., id; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
18

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
19

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

20

Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).

6

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted
a specific point of law. Moreover, appellant has not advanced a relevant legal argument not
previously considered. Consequently, he is not entitled to a review of the merits of his claim based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).21
Appellant also did not submit relevant and pertinent new evidence in support of his
reconsideration request. The underlying issue on reconsideration is whether appellant has met his
burden of proof to establish a medical condition causally related to the accepted factors of his
federal employment. This is a medical issue which is addressed by relevant medical evidence not
previously considered. 22
With his request for reconsideration, appellant submitted an undated response to OWCP’s
initial development questionnaire, a February 23, 2021 medical report from Dr. Zamora, and an
April 27, 2021 statement contending that his conditions were causally related to the accepted
factors of his federal employment. The undated questionnaire response and the April 27, 2021
statement do not constitute relevant and pertinent new evidence as they are not medical evidence.
Further, Dr. Zamora’s separate February 23, 2021 medical report substantially replicates a
previously considered report of even date. The only addition in the later-submitted report was a
list of employment activities that he believed aggravated appellant’s medical conditions.
Dr. Zamora’s did not, however, offer an explanation of the causal relationship between those
activities and the diagnosed conditions. The Board has held that the submission of evidence that
does not address the particular issue involved does not constitute a basis for reopening a case. 23
As such, appellant is not entitled to further review of the merits of his claim based on the third
above-noted requirement under 20 C.F.R. § 10.606(b)(3).24
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 25
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment. The Board further
21

C.B., Docket No. 18-1108 (issued January 22, 2019).

22

Y.L., Docket No. 20-1025 (issued November 25, 2020).

23

See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECB 140 (2000); Edward Matthew Diekemper; 31 ECAB 224, 225 (1979).
24

Supra note 16.

25

J.B., supra note 20; D.G., Docket No. 19-1348 (issued December 2, 2019).

7

finds that OWCP properly denied his request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 29 and July 27, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed. 26
Issued: March 11, 2022
Washington, DC

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

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

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

26

Upon return of the case record, OWCP may consider administratively combining the current claim file with
OWCP File No. xxxxxx014.

8