United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 19-1354
Issued: March 13, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 28, 2019 appellant filed a timely appeal from a December 3, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The most recent merit
decision was a Board decision dated March 13, 2018, which became final 30 days after issuance,
and is not subject to further review.2 As there was no merit decision by OWCP within 180 days
of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from December 3, 2018, the date of OWCP’s last decision, was
June 1, 2019. As this fell on a Saturday, appellant had until the following business day, Monday, June 3, 2019, to file
the appeal. Since using June 4, 2019, the date the appeal was received by the Clerk of the Appellate Boards would
result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal
Service postmark is May 28, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

20 C.F.R. § 501.6(d). See G.G., Docket No. 18-1074 (issued January 7, 2019).

3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On February 11, 2008 appellant, then a 51-year-old administrative assistant, filed an
occupational disease claim (Form CA-2) alleging that she developed constant pain in both elbows,
hands, arms, and her neck and back as a result of her employment duties. She indicated that she
first became aware of her condition and first realized that it resulted from her employment on
January 15, 2008. On the reverse side of the claim form, the employing establishment reported
that appellant was last exposed to the conditions alleged to have caused her conditions on
“February 12, 2008.” OWCP accepted her claim for bilateral lateral epicondylitis, bilateral medial
epicondylitis, sciatica, and neck sprain. It subsequently expanded acceptance of appellant’s claim
to include bilateral carpal tunnel syndrome.5 OWCP paid wage-loss compensation for total
disability on the periodic rolls, effective June 7, 2009.
On December 5, 2014 OWCP mailed appellant an EN1032 form for her completion. The
form instructed her to report all employment for which she received a salary, wages, income, sales
commissions, piecework, or payment of any kind. Appellant was also directed to report all selfemployment activities or involvement in business enterprises, including (but not limited to)
farming, sales work, operating a business, and providing services in exchange for money, goods,
or other services. The kinds of services that she was required to report included such activities as
carpentry, mechanical work, painting, contracting, child care, keeping books and records, and
managing and overseeing a business of any kind, including a family business. The form also
instructed appellant to report any work or ownership interest in any business enterprise, even if the
business lost money or if profits or income were reinvested or paid to another.
The cover letter for the EN1032 form included the following warning: “A false or evasive
answer to any question, or the omission of an answer, may be grounds for forfeiting your
compensation benefits and subject you to civil liability.” The forms contained certification clauses
which informed appellant of the consequences of not accurately reporting her employment

4

Docket No. 17-1362 (issued March 13, 2018).

5

Under OWCP File No. xxxxxx455, OWCP accepted appellant’s September 15, 2008 occupational disease claim
for cervical spondylosis without myelopathy or radiculopathy, cervical disc degeneration, lumbar spondylosis without
myelopathy or radiculopathy, lumbar spondylolisthesis, bilateral pes planus, neck sprain, bilateral medial and lateral
epicondylitis, and bilateral carpal tunnel syndrome as causally related to her employment duties. On September 1,
2010 OWCP combined the current case under OWCP File No. xxxxxxx045 with OWCP File No. xxxxxx455 with the
latter file as the master file.

2

activities, such as being subjected to criminal penalties and losing the right to receive workers’
compensation benefits.
On December 27, 2014 appellant completed and signed the EN1032 form. In response to
the question of whether she worked for an employer for the past 15 months, she reported “No.”
Appellant also responded “No” to the question of whether she was self-employed or involved in
any business enterprise in the past 15 months.
On June 12, 2015 OWCP received a narrative statement from appellant. Appellant
indicated that she needed to correct an answer on the yearly paperwork form. She explained that
her husband had purchased a snow cone trailer and had added her name to the permits, trailer, and
limited liability company (LLC) just in case anything happened to him. Appellant reported that
she answered “No” on the EN1032 form and that she did not think about the snow cone trailer
until her husband opened it for business over the summer.
In a July 23, 2015 letter, the employing establishment’s Office of Inspector General (OIG)
informed OWCP that an investigation into appellant revealed that she had been operating her own
business and had failed to report the employment activities to OWCP. It requested that OWCP
issue a forfeiture decision due to her failure to disclose her employment.
On July 27, 2015 OWCP received an OIG summary report of investigation, which
indicated that during surveillance OIG agents had observed appellant working at a snow cone
business, carrying merchandise and buckets, unloading supplies from a trailer, writing on the
outside menu of the business, setting up tables and umbrellas, staking signs in the ground, and
serving snow cones to customers.
In a completed Form EN1032 dated February 7, 2016, appellant answered “yes” that she
was self-employed or involved in a business enterprise from the period April 1 to
September 1, 2015. She explained that she and her husband bought a snow cone stand and that
she bought and delivered cups, checked on the employees, and visited with customers a couple of
times. Appellant noted a pay rate of $8.00/hour.
In a February 7, 2016 narrative statement, appellant explained that her husband had added
her name to the title of the snow cone stand that he had bought because he had lung cancer. She
indicated that, while grocery shopping with her husband, they occasionally bought cups, straws,
or napkins and dropped them off at the snow cone stand. Appellant also related that the snow cone
stand was two blocks from her house and that she occasionally stopped by to see how the business
was operating and visit with customers. She reported that neither she nor her husband were paid
or received any wages while operating the snow cone stand.
By decision dated August 18, 2016, OWCP found that appellant had forfeited her wageloss compensation for the period September 27, 2013 through December 27, 2014 for failure to
report her business and employment activities or earnings on a Form EN1032. The forfeiture
period covered the 15 months preceding the December 27, 2014 EN1032 form. OWCP found that
appellant had knowingly provided false information about earnings and self-employment on that

3

EN1032 form. It also determined that all compensation paid during the period would be considered
an overpayment subject to recovery in accordance with 5 U.S.C. § 8129.6
OWCP received a September 21, 2016 letter by Dr. John Ellis, Board-certified in family
medicine, who related that appellant had severe anxiety and depression due to the multiple
work-related injuries to her neck, upper extremities, lumbar spine, and feet. Dr. Ellis noted that
she was under the influence of narcotic pain medicine when she filled out the Form EN1032 in
2014 and opined that she was not fully aware of what she was signing.
In an October 18, 2016 report, Dr. Gary A. Rouse, a clinical psychologist, related that,
since his original evaluation in September 2008, appellant had continued to decline emotionally
and physically. He opined that she was not competent or knowledgeable enough to understand
what she was signing or attesting to or to understand the complexity or legal implications of
partnerships and LLCs.
In a January 31, 2017 statement, appellant explained that she had not received money from
her husband’s snow cone business nor did she perform any job activities. She reported that her
husband had recently dissolved the LLC.
On August 18, 2017 appellant requested reconsideration of the August 18, 2016 forfeiture
decision. In a statement dated August 9, 2017, she asserted that she believed that she was not
required to report her investment income as work activities since there was no evidence that the
three to five hours total spent at the business could be construed as integral to the operation of the
business. Appellant cited to FECA Procedure Manual 2.402.5 and S.G.,7 and contended that the
Board has distinguished between the reporting requirements for income received from passive
investment and earnings and income received by performing work and earning wages. She also
alleged that she was not fully aware when she signed the LLC documents due to her deteriorating
mental health, severe anxiety, and depression. Appellant also cited to B.Y.,8 alleging that the Board
had previously found that, in finding that a claimant forfeited compensation, OWCP could not rely
solely on video tape and summary submitted by the employing establishment’s OIG. She also
noted her disagreement with the OIG investigation and her interview with the OIG agents.

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By separate decision dated August 18, 2016, OWCP also issued a preliminary determination that appellant
received an overpayment of compensation in the amount of $43,832.60 for the period September 27, 2013 through
December 27, 2014 as a result of the forfeiture. It found that she was at fault in the creation of the overpayment
because she failed to report her business and employment activities or earnings from the snow cone business that she
owned with her husband. By decision dated December 12, 2016, OWCP finalized the preliminary overpayment
determination, finding an overpayment of compensation in the amount of $43,832.60 for the period September 27,
2013 to December 27, 2014. It also found that appellant was at fault in the creation of the overpayment, and therefore
was not eligible for waiver for recovery of the overpayment. On June 2, 2017 appellant filed an appeal to the Board
regarding the December 12, 2016 overpayment decision. By decision dated March 13, 2018, the Board affirmed the
December 12, 2016 OWCP decision, which finalized the overpayment of compensation in the amount of $43,832.60
for the period September 27, 2013 to December 27, 2014 and found that she was at fault in the creation of the
overpayment.
7

Docket No. 11-0942 (issued April 4, 2012).

8

Docket No. 11-1798 (issued July 24, 2012).

4

By decision dated November 17, 2017, OWCP denied modification of the August 18, 2016
forfeiture decision.
On November 20, 2018 OWCP received appellant’s appeal request form, which requested
reconsideration of the November 17, 2017 decision. In a narrative statement, appellant alleged
that OWCP ignored many issues, including her arguments concerning why any of the OIG
interviews or photographs were applicable. She also contended that OWCP erred by ignoring
evidence and arguments concerning whether her comprehension was impaired. Appellant cited to
the Board’s holding in C.G.,9 and alleged that she had provided probative supporting evidence that
she would have difficulty understanding the obligations required on a Form EN1032.
Appellant also resubmitted Dr. Ellis’ September 21, 2016 report and Dr. Rouse’s
October 28, 2016 report.
OWCP received a statement from appellant dated June 1, 2017. Appellant alleged that
OWCP had not supported its forfeiture determination because there was no evidence establishing
that she knowingly failed to report self-employment or earnings on the Form EN1032 signed on
December 27, 2014. She explained that the three to five hours spent at the business were not
considered valuable on the open labor market and that her activities could not be construed as
integral to the operation of the business. Appellant also asserted that, although the business was
licensed in May 2014, it had not opened for business in April 2015. She further indicated that the
file contained statements from her psychologist who noted that she was not fully aware of what
she was signing when she signed the LLC.
By decision dated December 3, 2018, OWCP denied appellant’s request for
reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.10 This discretionary authority, however, is subject
to certain restrictions.11 One such limitation is that the request for reconsideration must be received
by OWCP within one year of the date of the decision for which review is sought.12 Timeliness is
determined by the document receipt date of the request for reconsideration as is indicated by the
“received date” in the Integrated Federal Employees’ Compensation System (iFECS).13
9

Docket No. 11-0454 (issued May 22, 2012).

10

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).
11

20 C.F.R. § 10.607; S.C., Docket No. 18-0126 (issued May 14, 2019).

12
Id. at § 10.607(a); L.W., Docket No. 18-1475 (issued February 7, 2019). 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
(February 2016).
13

Id. at Chapter 2.1602.4(b).

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Imposition of this one-year filing limitation does not constitute an abuse of discretion.14 OWCP
may not deny a reconsideration request solely because it was untimely filed. When a claimant’s
request for reconsideration is untimely filed, it must nevertheless undertake a limited review to
determine whether it demonstrates clear evidence of error.15 If an application demonstrates clear
evidence of error, OWCP will reopen the case for merit review.16
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.17 It is not enough merely to demonstrate that the
evidence could be construed so as to produce a contrary conclusion.18 The evidence submitted
must not only be of sufficient probative value to create a conflict in medical opinion or demonstrate
a clear procedural error, but must be of sufficient probative value to shift the weight of the evidence
in favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.19
OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard.20
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.21
ANALYSIS
The Board finds that this case is not in posture for decision.
The most recent merit decision of OWCP was the November 17, 2017 decision. One year
from November 17, 2017 elapsed on November 17, 2018. As November 17, 2018 fell on a
Saturday, appellant had until the next business day on Monday, November 19, 2018 to file her
reconsideration request.22 OWCP received her reconsideration request on November 20, 2018
which was more than one year after the November 17, 2017 decision. Appellant’s request
14

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
15

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
16
L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 12 at Chapter 2.1602.5 (February 2016).
17

20 C.F.R. § 10.607(b); P.L., Docket No. 18-0813 (issued November 20, 2018); Fidel E. Perez, 48 ECAB 663,
665 (1997).
18

See Leona N. Travis, 43 ECAB 227, 240 (1991).

19

V.L., Docket No. 17-1493 (issued September 12, 2018); Annie L. Billingsley, 50 ECAB 210 (1998).

20

Supra note 12 at Chapter 2.1602.5a (October 2011).

21

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

22

Supra note 12 at Chapter 2.1602.4 (February 2016).

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therefore was untimely filed.23 The proper standard of review for an untimely reconsideration
request is the clear evidence of error standard.24 In denying her request, OWCP applied the
standard of review for timely requests for reconsideration.25 As it applied the incorrect standard
of review to the untimely request for reconsideration, the Board will set aside OWCP’s
December 3, 2018 decision and remand the case for proper review under the clear evidence of
error standard as required by regulations.26
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further action
consistent with this decision of the Board.
Issued: March 13, 2020
Washington, DC

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

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

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

23

See E.H., Docket No. 19-0859 (issued December 10, 2019).

24

Supra note 15.

25

See L.W., Docket No. 16-1202 (issued January 25, 2018); H.L., Docket No. 13-2077 (issued March 20, 2014).

26

See 20 C.F.R. § 10.607(b); see also M.C., Order Remanding Case, Docket No. 18-0866 (issued March 26, 2019).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Taylor, MI, Employer
__________________________________________

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

Docket No. 15-1570
Issued: November 16, 2015

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 15, 2015 appellant filed a timely appeal from an April 30, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision of February 27, 2014 to the filing of the current appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
because it was untimely filed and failed to present clear evidence of error.
FACTUAL HISTORY
OWCP accepted that on or before May 10, 2012 appellant, then a 56-year-old letter
carrier, sustained degenerative changes of the right talus and fibula, right peroneus brevis
1

5 U.S.C. § 8101 et seq.

tenosynovitis, and right plantar fasciitis causally related to a January 25, 1993 right lateral
malleolus fracture accepted under a previous claim.2
In a September 25, 2012 report, Dr. Alan J. Schram, an attending podiatrist, opined that
appellant should work no more than 30 hours a week due to the accepted conditions. On
November 1, 2012 he explained that appellant required a permanently reduced work schedule
because full-time work aggravated the diagnosed conditions.
On December 19, 2012 appellant claimed leave buyback for 32 intermittent days from
April 30 to October 30, 2012.3 In a February 19, 2013 letter, OWCP advised appellant of the
additional medical evidence needed to establish total disability for work for the claimed periods.
In response, appellant submitted a March 5, 2013 letter from Dr. Schram, opining that
appellant required “periodic time off” as his work duties exacerbated the accepted conditions. In
an undated note, Dr. Schram prescribed orthotics.4
By decision dated June 18, 2013, OWCP denied appellant’s claim as he did not provide
medical evidence establishing disability for work for the claimed periods.
In a letter dated July 31, 2013, appellant requested reconsideration. He submitted two
July 1, 2013 letters from Dr. Schram, confirming that he instructed appellant to stay home from
work on the claimed dates due to “degenerative changes.” Dr. Schram explained that
“[s]edentary light[-]duty work [was] not recommended as long periods of inactivity further
exacerbate the condition.”
By decision dated October 17, 2013, OWCP denied modification as Dr. Schram did not
explain why appellant was totally disabled for work for the claimed periods.
Appellant disagreed and, in a February 10, 2014 letter, again requested reconsideration.
He submitted additional medical evidence.
In a January 28, 2014 letter, Dr. Schram noted treating appellant for degenerative changes
to the right talus and fibula, right peroneus brevis tenosynovitis, and right plantar fasciitis. He
opined that appellant’s duties as a letter carrier from April 30 to October 30, 2012, including
walking up to 10 hours a day while carrying up to 35 pounds of mail “resulted in a temporary
worsening of these accepted conditions to the point where [appellant] was physically unable to
perform these duties as a consequent intermittent disability from work” on each of the claimed
dates. Dr. Schram explained that the intermittent nature of appellant’s disability during the
claimed periods was “indicative of the intensely physical nature of his letter carrier duties and

2

The previous claim is not presently before the Board.

3

Appellant claimed leave buyback for a total of 256 hours for the following dates in 2012: April 30 to May 3;
May 10, 15, 21, 28; May 31 to June 1; June 11, 12, 20, and 29; July 17 and 25; August 1, 2, 11, 13, 20, and 21;
September 11, 12, 20, and 21; and October 4, 8, 15, 24, 25 and 30.
4

In a June 14, 2013 letter, appellant requested a status report on his claim.

2

the resultant impact on his legs and feet.” He recommended a permanent reduction in appellant’s
work hours.
By decision dated February 27, 2014, OWCP denied modification, finding that
Dr. Schram’s additional report was insufficient to establish an objective worsening of appellant’s
condition on the dates claimed. It found that Dr. Schram merely recommended that appellant
take periodic days off to avoid flare-ups of his chronic conditions.
In a letter dated and postmarked February 24, 2015 and received by OWCP on March 2,
2015, appellant requested reconsideration. He asserted that Dr. Schram clearly opined that
periodic days off were necessary to manage the accepted chronic right foot conditions.
Appellant enclosed an April 3, 2014 Family and Medical Leave Act certification in which
Dr. Schram stated that appellant required the claimed days off to recover from pain symptoms,
an April 3, 2014 chart note from Dr. Schram with recommendations for symptoms management
including “reduced work hours,” and literature about plantar fasciitis.
Appellant also provided a May 3, 2012 note from Dr. Howard M. Wright, an attending
osteopathic physician Board-certified in family practice, holding appellant off work from
April 30 to May 4, 2012. Dr. Wright referred appellant to a specialist.
By decision dated April 30, 2015, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to present clear evidence of error. It found that
appellant’s request for reconsideration was received on March 2, 2015, more than one year
following the February 27, 2014 merit decision. OWCP further found that appellant’s request
did not establish clear evidence of error in the February 27, 2014 decision denying his traumatic
injury claim.
LEGAL PRECEDENT
Section 8128(a) of FECA5 does not entitle a claimant to a review of an OWCP decision
as a matter of right.6 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.7 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is
received within one year of the date of that decision.8 The Board has found that the imposition
of this one-year time limitation does not constitute an abuse of the discretionary authority
granted OWCP under 5 U.S.C. § 8128(a).9
5

5 U.S.C. § 8128(a).

6

Thankamma Mathews, 44 ECAB 765, 768 (1993).

7

Id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

8

20 C.F.R. §§ 10.607, 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority;
see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
9

5 U.S.C. § 10.607(b); supra note 6, Jesus D. Sanchez, supra note 7.

3

In those cases where requests for reconsideration are untimely filed, OWCP must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its
regulations.10 OWCP regulations state that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in OWCP regulations, if the
claimant’s request for reconsideration shows “clear evidence of error” on the part of OWCP.11
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.12 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.13 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.14 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.15 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error by OWCP.16 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.17
ANALYSIS
In its April 30, 2015 decision, OWCP properly determined that appellant failed to file a
timely application for review of the February 27, 2014 merit decision. Appellant requested
reconsideration by a letter dated and postmarked on February 24, 2015, but not received by
OWCP until March 2, 2015, more than one year from the issuance of the February 27, 2014
merit decision. OWCP denied the request by April 30, 2015 decision as it was untimely filed
and failed to present clear evidence of error. As the March 2, 2015 reconsideration request was
untimely filed, the Board must therefore determine whether appellant’s request demonstrated
clear evidence of error in OWCP’s February 27, 2014 merit decision.
In support of his request for reconsideration, appellant submitted a February 24, 2015
letter contending that the reports of Dr. Schram, an attending podiatrist, were sufficient to meet
his burden of proof. The critical issue in the claim at the time of the February 27, 2014 merit
10

Supra note 6.

11

20 C.F.R. § 10.607(b).

12

Supra note 6.

13

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

14

Jesus D. Sanchez, supra note 7.

15

Supra note 13.

16

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

17

Gregory Griffin, supra note 8.

4

decision was a lack of probative medical evidence establishing disability for work on the claimed
dates due to the accepted conditions. As appellant is a layperson, his opinion does not constitute
medical evidence.18 Appellant’s letter is therefore irrelevant to the claim and does not
demonstrate clear evidence of error.19
Appellant also provided medical reports and literature from Dr. Schram and from
Dr. Wright, an attending Board-certified family practitioner. As Dr. Schram’s reports and
literature on plantar fasciitis did not specifically address the claimed disability for work, they are
irrelevant to the claim. While Dr. Wright’s opinion suggests a contrary conclusion to that
reached by OWCP, this is insufficient to establish clear evidence of error.20
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP in issuing its February 27, 2014 merit decision denying appellant’s claim. He did not
submit the type of positive, precise, and explicit evidence which manifests on its face that
OWCP committed an error. For these reasons, OWCP’s April 30, 2015 decision was proper
under the law and facts of the case.
On appeal, appellant contends that tracking information proves that OWCP received his
reconsideration request before March 2, 2015. However, there is no evidence of record
indicating an earlier date of receipt. Appellant also contends that OWCP ignored his letters,
explanations, and the opinions of his physicians. Appellant asserts that 120 days was a
reasonable recovery time, and that he did not work because he could not work. These arguments
pertain to the merits of the claim that are not before the Board on the present appeal.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of the claim as it was untimely filed and failed to present clear evidence of
error.

18

Supra note 13.

19

Id.

20

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 30, 2015 is affirmed.
Issued: November 16, 2015
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

6


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

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

Docket No. 10-1130
Issued: January 18, 2011

Case Submitted on the Record

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

JURISDICTION
On March 12, 2010 appellant filed a timely appeal from a December 29, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established she sustained degenerative disc disease
causally related to her June 13, 2008 employment injury; and (2) whether appellant established
she sustained recurrence of disability on September 22, 2008, causally related to her accepted
employment injury.
FACTUAL HISTORY
On June 13, 2008 appellant, a 49-year-old clerk, sustained a lumbar sprain after opening
an improperly locked all-purpose carrier (APC). She had to jump back to keep materials from
falling on her. The record indicates that appellant has preexisting degenerative disc disease.

On June 17, 2009 appellant claimed a recurrence of disability beginning
September 22, 2008. She stopped work on April 17, 2009 and claimed wage-loss compensation
from June 17 through July 30, 2009 for 156 hours of leave without pay. Appellant also sought
wage-loss compensation for nightly differential from April 17 through September 4, 2009.
In support of appellant’s recurrence claim, on June 5, 2009 Dr. Kris Lewonowski, a
Board-certified orthopedic surgeon, reviewed her medical history, presented findings on
examination and diagnosed L5-S1 degenerative disc disease. He also diagnosed L4-5
degenerative disc disease and a leak. Dr. Lewonowski asserted that in all medical probability
appellant’s June 13, 2008 employment injury exacerbated her preexisting degenerative disc
disease. He stated that appellant most likely had routine or age-related changes but now had
tears of the annulus at L4-5 and L5-S1 with discographic evidence of leakage. Dr. Lewonowski
opined that these conditions are never a common finding in age-related degenerative disc disease
cases. Rather, he opined that these conditions implied a trauma or twisting injury.
On June 13, 2008 Dr. Jon Kirkpatrick, an orthopedic surgeon, presented findings on
examination and diagnosed lumbar-spine degenerative disc disease and low back pain. He also
provided work restrictions.
By decision dated August 6, 2009, the Office denied appellant’s wage-loss claims
because the evidence of record did not demonstrate her degenerative disc disease was causally
related to accepted employment injury or that her accepted employment injury caused total
disability during the periods claimed.
On August 13, 2009 appellant, through her attorney, requested an oral hearing.
By decision dated September 15, 2009, the Office denied appellant’s recurrence claim
because the evidence of record did not demonstrate that, on September 22, 2008, she sustained a
recurrence of the accepted medical condition or that she was totally disabled due to the accepted
employment injury.
An oral hearing was held on November 4, 2009 at which appellant and her attorney were
present. Appellant described the June 13, 2008 incident and her medical treatment. She
discussed her degenerative disc disease.
By decision dated December 29, 2009, an Office hearing representative affirmed both the
August 6 and September 15, 2009 decisions because the evidence of record did not demonstrate
appellant’s degenerative disc disease was causally related to her accepted employment injury and
she had not established a recurrence of her accepted injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,2
1
2

5 U.S.C. §§ 8101-8193.
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

2

including that any specific condition or disability for work for which she claims compensation is
causally related to that employment injury.3 As part of her burden, the employee must submit
rationalized medical opinion evidence based on a complete factual and medical background
showing causal relationship.4 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of the analysis manifested and the medical
rationale expressed in support of the physician’s opinion.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.6
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a lumbar sprain as a result of the June 13,
2008 incident during which she had to jump backwards to keep materials from falling on her
while opening an improperly locked APC. Appellant alleged an aggravation of her degenerative
disc disease as a result of this incident. Her burden is to establish that this employment incident
caused an aggravation of her degenerative disc disease. Causal relationship is a medical issue
that can only be established by probative medical opinion evidence.7 The Board finds the
medical opinion evidence of record insufficient to establish the required causal relationship.
Dr. Lewonowski diagnosed degenerative disc disease at the L4-5 and L5-S1 levels. He
advised that appellant “most likely” had routine or age-related degenerative changes that were
exacerbated by her June 13, 2008 employment injury which produced tears of the annulus at
L4-5 and L5-S1 levels with discographic evidence of leakage. Dr. Lewonowski opined that such
conditions were never common in age-related cases; rather they implied a trauma or twisting
injury. The Board finds that he did not address any history of appellant’s degenerative disease or
the specifics of her June 13, 2008 employment incident. Dr. Lewonowski did not explain how
appellant’s jump backwards would constitute a type of trauma or twisting injury adequate to
aggravate appellant’s preexisting condition. Use of the terms “most likely” and “implied”
renders the physician’s opinion as speculative and equivocal and, thus, of diminished probative

3

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

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

6

I.J., 59 ECAB 498 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

See Steven S. Saleh, 55 ECAB 169 (2003).

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value.8 Dr. Lewonowski did not adequately address the issue of aggravation of appellant’s
degenerative disease.
Dr. Kirkpatrick diagnosed lumbar spine degenerative disc disease and low back pain. His
report is of diminished probative value. Dr. Kirkpatrick did not provide any opinion explaining
how the established employment incident caused the diagnosed conditions.9
An award of compensation may not be based on surmise, conjecture or speculation.10
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.11 The fact that a condition manifests itself or worsens during a
period of employment12 or that work activities produce symptoms revelatory of an underlying
condition13 does not raise an inference of causal relationship between a claimed condition and an
established employment incident.
Appellant has not submitted medical opinion evidence containing a reasoned discussion
of causal relationship, one that soundly explains how the established employment incident
caused or aggravated her alleged degenerative disc disease condition. The Board finds that she
has not established the essential element of causal relationship.
LEGAL PRECEDENT -- ISSUE 2
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”14 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable, and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and

8

Cecelia M. Corley, 56 ECAB 662 (2005).

9

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value).
10

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
11

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

12

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

13

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155,157 (1960).

14

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

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supports that conclusion with sound medical reasoning.15 Where no such rationale is present,
medical evidence is of diminished probative value.16
ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained lumbar sprain as a result of the June 13,
2008 incident. Appellant returned to full-duty work. The issue is whether she established she
sustained a recurrence of disability on September 22, 2008, causally related to her accepted
employment injury. Causal relationship is a medical issue that can only be proven by probative
medical opinion evidence which demonstrates just that. Appellant has failed to submit sufficient
probative medical evidence containing a rationalized opinion which relates her claimed
recurrence of disability to her accepted employment injury, lumbar sprain.17 Consequently, she
has not discharged her burden of proof to establish her claim that she sustained a recurrence of
disability as a result of her accepted employment condition.
Dr. Lewonowski diagnosed degenerative disc disease at the L4-5 and L5-S1 levels. He
did not explain how appellant’s degenerative disc disease or annulus tears represented a
spontaneous change in her accepted lumbar sprain. Dr. Lewonowski attempted to relate these
conditions to the June 13, 2008 employment incident, but lacking medical rationale based upon a
proper factual background, as previously discussed, his opinion is not sufficient to establish that
the accepted sprain contributed to the degenerative disease or annulus tear. His opinion is
insufficient to discharge appellant’s burden of proof.
Dr. Kirkpatrick diagnosed lumbar-spine degenerative disc disease and low back pain. As
noted, he provided no opinion explaining how these conditions represented a spontaneous
change in appellant’s accepted employment injury.
An award of benefits may not be based on surmise, conjecture, speculation or upon a
claimant’s own belief that there is causal relationship between her claimed condition and her
accepted employment injury.18
CONCLUSION
The Board finds that appellant has not established she sustained degenerative disc disease
in the performance of duty on June 13, 2008, causally related to her employment. The Board
further finds that she has not established she sustained a recurrence of disability on
September 22, 2008, causally related to her accepted employment injury.
15

I.J., supra note 6; Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

16

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

17

Appellant submitted a report (Form CA-17) bearing an illegible signature, which lacks probative value on the
issue of causal relationship and is insufficient to satisfy her burden of proof because its author cannot be identified
as a physician for purposes of the Act. 5 U.S.C. § 8101(2). See R.M., 59 ECAB 690 (2008); Merton J. Sills, 39
ECAB 572 (1988).
18

S.S., 59 ECAB 315 (2008); Paul E. Thams, 56 ECAB 503 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the December 29 and September 15, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 18, 2011
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Yorkville, OH, Employer
__________________________________________

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

Docket No. 10-4
Issued: July 1, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 30, 2009 appellant filed a timely appeal of a June 12, 2009 decision of the
Office of Workers’ Compensation Programs affirming the denial of her claim for compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury on August 7, 2008 in the performance of duty.
FACTUAL HISTORY
On October 30, 2008 appellant, then a 53-year-old city mail carrier, filed a traumatic
injury claim alleging that on August 7, 2008 she injured her right foot after stepping off of a wall
and falling into a small hole while delivering mail. She stopped work and first sought medical
treatment on October 29, 2008. Appellant returned to modified duty on December 1, 2008. The
employing establishment controverted the claim.

On November 4, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit such evidence.
In an October 29, 2008 work status report, Dr. Lawrence DiDomenico, a podiatrist,
diagnosed right ankle trauma and advised that appellant remain off work until
November 10, 2008.
On November 6, 2008 he diagnosed sprain and tenosynovitis.
Dr. DiDomenico stated that appellant was unable to work. He also advised that appellant could
perform duties of a sit down job only.
An undated and unsigned employing establishment health and resource management
form, received from Dr. DiDomenico’s office on November 6, 2008, noted work-related
diagnoses of anterior talofibular sprain, tenosynovitis and edema. It checked a box “no”
indicating that appellant could not return to work on the next scheduled shift. It also indicated
that appellant required restrictions due to the work incident and required time off work until
approximately December 11, 2008.
A November 15, 2008 witness statement from a mail recipient noted that on August 7,
2009 he saw appellant step off of a small wall into a small hole. He further noted that she fell to
the ground then picked herself up and continued making deliveries.
In a November 17, 2008 statement, appellant noted that she did not report her injury to
her supervisor at the time it occurred because she believed she could continue with her normal
routine and that her condition would improve on its own. She stepped off of a six to eight foot
wall and fell into a hole at which time she felt a pulling sensation on the outside of her right foot.
Appellant continued making deliveries after her fall. She indicated that her prior medical history
included heel spur surgery, hammer toe correction on her right foot and tendon repair that was
performed between 1999 and 2001.
In a December 10, 2008 decision, the Office denied appellant’s claim finding that,
although the evidence supported that the claimed event occurred, there was no medical evidence
to support that her diagnosis was connected to the work incident.
Undated work status reports from Dr. DiDomenico advised that appellant could continue
sitting only work with no weight bearing. He recommended continued physical therapy. In a
November 26, 2008 report, Dr. DiDomenico indicated that on October 29, 2008 appellant
complained of hurting her ankle at work but she could not identify a specific date. Appellant
complained of pain and tenderness along the ankle joint. Upon examination, Dr. DiDomenico
found possible tenosynovitis, no evidence of fracture or dislocation or other significant bone
pathology. He noted that a magnetic resonance imaging (MRI) scan performed on October 3,
2008 revealed peroneal brevis tendinosis without significant tear, subluxation, tenosynovitis, thin
anterior talofibular ligament without edema or fibrosis and chronic calcaneal heel spur without
inflammation. Dr. DiDomenico opined that appellant’s condition and diagnosis was believed to
be caused by an aggravated injury that appellant stated she sustained at work in August 2008.
Appellant requested reconsideration on March 12, 2009, contending that Dr. DiDomenico
provided a firm diagnosis and that she was scheduled for surgery. She provided a summary of
her medical treatment.

2

In a March 4, 2009 report, Dr. DiDomenico noted treating appellant on February 11,
2009 for a work injury sustained on August 7, 2008 when she sustained right ankle trauma after
stepping off of a small wall directly into a hole. Appellant had a peroneal tendon rupture of the
right ankle resulting in instability. Dr. DiDomenico noted his findings were consistent with MRI
scan findings. He stated that appellant was scheduled for right ankle stabilization and tendon
debridement on March 16, 2009. Dr. DiDomenico opined that the injury was directly caused by
factors of her employment.
In a June 12, 2009 decision, the Office denied appellant’s claim. It found that, although
there was a definitive diagnosis in connection with the claimed work incident, the medical
evidence was insufficient to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; that the claim was filed
within the applicable time limitation; that an injury was sustained while in the performance of
duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.4

1

5 U.S.C. §§ 8101-8193.

2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

Id.

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

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ANALYSIS
The record reflects that on August 7, 2008 appellant fell after stepping off of a wall and
landing in a hole while delivering mail. However, the medical evidence does not establish that
the August 7, 2008 fall caused or aggravated appellant’s alleged right foot condition.
In a November 26, 2008 report, Dr. DiDomenico noted that during an October 29, 2008
visit appellant complained of injuring her ankle at work but could not identify on which
particular date the injury occurred. He indicated his examination revealed no fracture,
dislocation or other significant bone pathology. Dr. DiDomenico also indicated that an MRI
scan revealed peroneal brevis tendinosis without significant tear. He opined that appellant’s
condition was caused by an aggravated injury that she reported occurred in August 2008.
Although Dr. DiDomenico’s report supports causal relationship, his opinion is of limited
probative value as it was not derived independent of appellant’s belief that her condition was
caused by an employment incident.5 He did not explain the reasons why he felt that the
August 7, 2008 incident, for which no medical treatment was sought until October 29, 2008,
would cause or aggravate the diagnosed condition.
Moreover, Dr. DiDomenico’s November 26, 2008 report conflicts with the findings in his
March 4, 2009 report. In particular, he definitively stated in his March 4, 2009 report that
appellant sustained a right ankle injury at work on August 7, 2008 when his prior report
indicated that appellant was unable to identify the specific date of injury. Dr. DiDomenico did
not indicate what new information caused him to have a more specific date of injury. Also, his
March 4, 2009 report noted that appellant had peroneal tendon rupture of the right ankle that
resulted in instability, and that this finding was consistent with MRI scan results. However, on
November 26, 2008 Dr. DiDomenico determined that an MRI scan report supported his finding
on examination that appellant’s right ankle had no fractures, dislocations or any other significant
bone pathology. He also recognized that the MRI scan indicated peroneal brevis tendinosis
without significant tear. Dr. DiDomenico did not explain the inconsistencies in his reports and
did not provide the actual MRI scan results to support any of his findings.6 Additionally, his
March 4, 2009 opinion that appellant’s injury was directly caused by her employment was too

5

William Nimitz, 30 ECAB 567 (1979) (where the Board has held that an award for compensation may not be
predicated upon appellant’s belief of causal relation as such a relationship must be shown by rationalized medical
evidence of causal relation based upon a specific and accurate history of employment incidents or conditions which
are alleged to have caused or exacerbated a disability); see Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002)
(the opinion of a physician must be of reasonable medical certainty and must be supported by medical rationale
explaining causal relationship).
6

The weight of medical evidence is determined by its reliability, its probative value and its convincing quality.
The factors that comprise the evaluation of medical evidence include the opportunity for and the thoroughness of
physical examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history,
the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion. The
opinion of a physician must be of reasonable medical certainty and must be supported by medical rationale
explaining causal relationship. K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

4

general and was unsupported by any medical rationale explaining how appellant’s employment
caused a specific injury.7
None of Dr. DiDomenico’s other reports of record specifically address the issue of causal
relationship and are therefore of limited probative value.8
The record also contains an unsigned and unidentifiable health and resource management
form. However, medical reports lacking proper identification do not constitute probative
medical evidence.9
For these reasons, the medical evidence is insufficient to meet appellant’s burden of proof
to establish that she sustained a traumatic injury on August 7, 2008 in the performance of duty.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a traumatic injury on August 7, 2008 in the performance of duty.

7

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (a medical report is of limited probative
value on the issue of causal relationship if it contains a conclusion regarding causal relationship which is
unsupported by medical rationale).
8

See S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
9

See D.D., 57 ECAB 734 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 12, 2009 is affirmed.
Issued: July 1, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF ENERGY, NATIONAL
NUCLEAR SECURITY ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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Appearances:
Stephen Domenic Scavuzzo, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0854
Issued: August 24, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 13, 2016 appellant, through counsel, filed a timely appeal of a September 15,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e) (2014). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id.
An attorney’s or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292 (2006). Demands for
payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for
investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant timely filed an occupational disease claim for
compensation under 5 U.S.C. § 8122(a).
On appeal appellant’s counsel contends that OWCP failed to follow the Board’s
instructions as it failed to review the merits of the claim.
FACTUAL HISTORY
This case has previously been before the Board. In a May 18, 2015 decision, the Board
found that OWCP had improperly denied appellant’s request for reconsideration under 5 U.S.C.
§ 8128(a).3 The Board set aside the May 24, 2014 OWCP decision denying reconsideration and
remanded the case for OWCP to conduct a merit review of the case. The facts and circumstances
of the case as set forth in the Board’s prior decisions are hereby incorporated by reference. The
relevant facts from the prior appeal are set forth below.
On November 7, 2012 appellant, then a 48-year-old budget analyst, filed an occupational
disease claim (Form CA-2) alleging that on May 4, 2009 he first became aware of his
nonischemic cardiomyopathy and lymphoma condition. He noted that he also became aware that
the condition was due to his work on this date. On the back of the form, appellant’s supervisor
stated that appellant had abandoned his position and was removed from his position on April 29,
2012 due to inability to perform his work duties.
In statement dated November 7, 2012, appellant related that, as a budget analyst, his job
required that funding be appropriately aligned to field and site locations. It also required that he
meet deadlines on requests for financial data. Appellant claimed that this caused considerable
stress and pressure. He alleged that working on budgets which were managed under
congressional continuing resolutions added to stress of his position. While under these
conditions, appellant was asked by directors and program managers to move or realign funding,
which further increased his stress level. He also experienced stress from being routinely
contacted by employees from other departments, who demanded “that their funding be
obligated.” Appellant related that the constant stress impacted his ability to sleep as he was only
able to sleep three or four hours a night and woke up exhausted.
On March 1, 2013 appellant completed OWCP’s questionnaire. He stated that he first
exhibited symptoms of his condition on May 9, 2009 when he was admitted to the emergency
room after having difficulty walking from the metro to work and was diagnosed with heart
failure. In August 2010 a defibrillator was implanted in appellant’s chest. During the next two
years following the implantation of the defibrillator he continued experiencing his heart racing,
chest tightness and difficulty breathing at work. On November 28, 2011 the symptoms
culminated in a diagnosis of decompensated congestive heart failure. Appellant alleged that his
heart condition was aggravated by the performance of his duties, stressful work events as well as
worrying about his work. He noted his disagreement with OWCP’s statement that his claim was
3

Docket No. 14-1904 (issued May 18, 2015).

2

untimely as he continued to experience heart problems while working and was not aware of the
connection to his employment until his second cardiac catheterization on December 8, 2011.4
On March 5, 2013 OWCP received a March 28, 2012 removal letter from the employing
establishment. It noted that appellant had not performed the duties of his position since
December 11, 2011 and that his treating physician, on a Family and Medical Leave Act request
form, indicated that he was disabled due to medical and emotional stress and due to his medical
conditions. Based on his inability to perform the duties of his position, the employing
establishment removed him from his position in order to promote the efficiency of the
organization.
In an October 2, 2012 claim (Form CA-7) appellant claimed wage-loss compensation for
the period December 12, 2011 and continuing. On the form he noted the date of his injury as
November 28, 2011 and his last workday as April 29, 2012.
In a February 8, 2014 statement, appellant related that on his original CA-2 form he had
incorrectly identified the date when he realized his employment had aggravated or caused his
illness. He stated that it was not until Dr. David Pearle told him that he was disabled from
performing the duties of his job on December 8, 2011 that he became aware of the causal
connection between his condition and his employment. Lastly, appellant noted that he would
have quit his job if he had been informed in May 2009 by Dr. Pearle that his work exacerbated or
contributed to his diagnosed heart condition.
On February 11, 2014 OWCP received a corrected CA-2 form with a revised date of
December 6, 2011 and appellant’s February 8, 2014 statement explaining that he had incorrectly
identified the date on his original CA-2 regarding when he first realized his employment had
caused or aggravated his illness.
By decision dated September 15, 2015, OWCP denied appellant’s claim on the basis that
he failed to timely file his occupational disease claim.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.5 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death.6
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his condition and his employment. Such awareness is competent to start the limitation
4

The record reflects that this procedure actually took place on December 6, 2011.

5

C.D., 58 ECAB 146 (2006); David R. Morey, 55 ECAB 642 ( 2004); Mitchell Murray, 53 ECAB 601 (2002).

6

W.L., 59 ECAB 362 (2008); Gerald A. Preston, 57 ECAB 270 (2005); Laura L. Harrison, 52 ECAB
515 (2001).

3

period even though the employee does not know the precise nature of the impairment or whether
the ultimate result of such affect would be temporary or permanent.7 Where the employee
continues in the same employment after he reasonably should have been aware that he has a
condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.8 Section
8122(b) of FECA provides that the time for filing in latent disability cases does not begin to run
until the claimant is aware or by the exercise of reasonable diligence should have been aware, of
the causal relationship between the employment and the compensable disability.9 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.10
ANALYSIS
The Board finds that appellant has established that he filed a timely claim for
compensation under the three-year time limitation of section 8122 of FECA.
In his notice of occupational disease on November 7, 2012, appellant advised that he
became aware of his condition and its relation to his federal employment on May 4, 2009.
However, in subsequent statements and claims for wage-loss compensation he notes the date of
November 28, 2011 as the date he first became aware of the connection between his heart
condition and his employment. In subsequent statements, a corrected CA-2 form and CA-7
forms, appellant reported either November 28 or December 8, 2011 as the date he first became
aware of the connection between his heart condition and his work. He also stated that he
continued to be exposed to the duties he alleged aggravated his condition until he stopped work.
The employing establishment noted that appellant’s last work date was December 11, 2011 and
that he was removed from his position on April 29, 2012 due to his inability to perform his work
duties. Although the date appellant initially provided on his CA-2 as the date of his injury was
more than three years later than the date he filed the claim, he continued his work as a budget
analyst until stopping work on December 11, 2011. Appellant claimed that the performance of
his duties as a budget analyst, worrying about his work, and stressful work events duties
aggravated his heart condition.
OWCP found the claim untimely under 5 U.S.C. § 8122(a) because appellant initially
indicated that he first was aware that his heart condition had been aggravated by his employment
duties on May 4, 2009 and did not file a claim until November 17, 2012. It, however, failed to
acknowledge that his claim is an occupational disease claim based on continuing exposure to the
identified work factors. The time limitation does not begin to run until appellant is no longer
exposed to the identified factors alleged to have contributed to an employment injury.11 As the
7

Larry E. Young, 52 ECAB 264 (2001).

8

Id.

9

5 U.S.C. § 8122(b).

10

Gerald A. Preston, 57 ECAB 270 (2005); Debra Young Bruce, 52 ECAB 315 (2001).

11

James W. Beavers, 57 ECAB 254 (2005).Larry E. Young, 52 ECAB 264 (2001); Linda J. Reeves, 48 ECAB
373 (1997).

4

Board has held, “if an employee continues to be exposed to injurious working conditions, the
time limitation begins to run on the last date of this exposure.”12 The date of last exposure in the
current case was December 11, 2011, the date appellant last worked for the employing
establishment. Appellant’s claim was therefore timely filed under 5 U.S.C. § 8122(a).
Because appellant has filed a timely claim for compensation, the case is remanded to
OWCP to further develop and adjudicate the merits of the claim. Following any other
development that it deems necessary, OWCP shall issue a de novo decision in the case.
CONCLUSION
The Board finds that appellant timely filed an occupational disease claim for
compensation under 5 U.S.C. § 8122(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 15, 2015 is reversed and the case is remanded to
OWCP for further proceedings consistent with this decision and order.
Issued: August 24, 2016
Washington, DC

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

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

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

12

R.A., Docket No. 16-0090 (issued March 21, 2016); id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Corpus Christi, TX, Employer
__________________________________________
Appearances:
Douglas Sughrue, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 20-0586
Issued: March 10, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

On January 22, 2020 appellant, through counsel, filed a timely appeal from a November 7,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of
the Appellate Boards assigned Docket No. 20-0586.

1

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

The Board notes that, following the November 7, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On October 23, 2014 appellant, then a 58-year-old building mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on October 22, 2014, when pulling a cluster box unit from
a pallet stack of four units, he experienced a twinge and pain in his lower back while in the
performance of duty. OWCP accepted appellant’s claim for a lumbar sprain. On October 24, 2014
appellant accepted a modified position as a building equipment mechanic at retained pay. He
remained on modified duty and did not stop work.
In a report dated February 3, 2015, Dr. Patrick Langham Gleason, a Board-certified
neurosurgeon, diagnosed lumbago lumbar disc displacement and lumbar sprain. He provided
periodic reports through February 29, 2016 diagnosing acute sciatica, lumbar radiculopathy,
lumbar disc degeneration, lumbar spondylosis, lumbago, lumbar muscle spasm, and back pain.
Dr. Gleason opined that appellant’s lumbar pain and spasm were consistent with the mechanism
of the October 22, 2014 lumbar sprain and the timing of onset. He requested that OWCP authorize
lumbar decompression and fusion.
On June 29, 2016 OWCP obtained a second opinion report from Dr. James E. Butler, III,
a Board-certified orthopedic surgeon, who opined that appellant’s lumbar disc displacement,
lumbar disc degeneration, lumbar spondylosis, lumbago, and lumbar muscle spasm at L3 to L5
were not related to the accepted lumbar injury. Dr. Butler noted that the proposed fusion was
related to preexisting, age-related disc degeneration, disc displacement, and lumbar spondylosis.
By decision dated November 10, 2016, OWCP denied authorization of the requested
lumbar decompression and fusion, based on Dr. Butler’s opinion as the weight of the medical
evidence.
By decision dated February 10, 2017, OWCP denied expansion of the claim to include the
additional conditions of lumbar disc displacement, lumbar disc degeneration, lumbar spondylosis,
lumbago, and lumbar muscle spasm as causal relationship had not been established.
On December 20, 2017 appellant, through counsel, requested reconsideration. He
submitted a June 28, 2017 report from Dr. Gleason disagreeing with Dr. Butler’s June 29, 2016
opinion.
OWCP found a conflict of medical opinion between Dr. Gleason, for appellant, and
Dr. Butler, for the government. To resolve the conflict, it selected Dr. Charles Kennedy, a Boardcertified orthopedic surgeon serving as the independent medical examiner (IME). OWCP
requested that he address whether acceptance of the claim should be expanded to include lumbar
spondylosis. Its March 23, 2018 referral letter noted the street address and suite number of
Dr. Kennedy’s office, which was at the corporate office of the Disability Evaluating Center in
Corpus Christi, Texas. Dr. Kennedy provided a May 17, 2018 IME report, discussing the
statement of accepted facts (SOAF), and appellant’s history of injury and treatment. He provided
3

Order Granting Remand, Docket No. 18-1642 (issued June 11, 2019).

2

findings on clinical examination at the corporate office of the Disability Evaluating Center in
Corpus Christi, Texas and opined that the October 22, 2014 lumbar sprain had not aggravated
appellant’s preexisting degenerative lumbar conditions. Dr. Kennedy noted that the requested
surgery was not necessitated by the accepted injury.
By decision dated June 25, 2018, OWCP denied modification of the February 10, 2017
decision denying expansion of the claim. It accorded Dr. Kennedy’s opinion the special weight of
the medical evidence. On August 27, 2018 appellant, through counsel, filed a timely appeal to the
Board.4 By order issued June 11, 2019, the Board set aside OWCP’s June 25, 2018 decision and
remanded the case for additional development to resolve the existing conflict of medical opinion.
On remand of the claim OWCP selected Dr. Frank A. Luckay, a Board-certified orthopedic
surgeon, as the new IME. It requested that Dr. Luckay provide medical rationale addressing the
proposed expansion of the claim. The August 23, 2019 referral letter notes a street address and
suite number which was at the corporate office of the Disability Evaluating Center in Corpus
Christi, Texas. Dr. Luckay’s office is identical to that of Dr. Kennedy’s office as noted in the
March 23, 2018 referral letter. Dr. Luckay submitted a September 16, 2019 report from his
examination at the corporate office of the Disability Evaluating Center in Corpus Christi, Texas,
in which he noted his review of the medical records and the SOAF. He opined that a small L4 disc
bulge demonstrated by January 19, 2015 magnetic resonance imaging (MRI) scan was unrelated
to the October 22, 2014 injury and that the requested lumbar decompression and fusion was not
medically necessary.
By decision dated November 7, 2019, OWCP denied expansion of the claim, based on
Dr. Luckay’s IME opinion, which was afforded the special weight of the medical evidence.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.
The Board finds that Dr. Luckay’s opinion is not entitled to the special weight afforded an
IME as it appears that he was an associate of Dr. Kennedy, the prior IME in the claim. The
importance of safeguarding the independence of an impartial medical specialist is recognized in
OWCP procedures. The procedures provide that physicians previously connected with the claim
or the claimant, or physicians in partnership with those already so connected may not be used as
impartial medical specialists.5 A physician serving as an impartial specialist should be one who is
wholly free to make a completely independent judgment, untrammeled by a conclusion rendered
on a prior examination.6 Dr. Luckay appears to be associated with the Disability Evaluating Center
in Corpus Christi, Texas, at the same office as Dr. Kennedy. The Board notes that the
The Director of OWCP filed a motion on February 23, 2019 requesting that the Board set aside OWCP’s June 25,
2018 decision and remand the case for further development.
4

5
Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.4.b(3)(b) (July 2011). See also Ronald Santos, 53 ECAB 742 (2002); Raymond E. Heathcock, 32 ECAB 2004
(1981) (where the Board remanded the case because the selected impartial medical examiner was an associate of a
physician who had previously examined appellant).
6

S.L., Docket No. 14-1250 (issued December 2, 2015); Raymond E. Heathcock, id.

3

examinations were conducted at the same location. The Board, therefore, finds that Dr. Luckay
was not properly selected as the impartial medical specialist.7 Thus, the conflict of medical opinion
evidence remains unresolved.
Accordingly, the Board will set aside OWCP’s November 7, 2019 decision and remand the
case for proper selection of a referee physician. OWCP shall follow its procedures and refer
appellant, a SOAF, the medical record, and a list of specific questions, to a physician of the
appropriate specialty to resolve the issue of whether the claim should be expanded to include
lumbar disc displacement, lumbar disc degeneration, lumbar spondylosis, lumbago, and lumbar
muscle spasm. After such further development as deemed necessary, OWCP shall issue a de novo
decision.
IT IS HEREBY ORDERED THAT the November 7, 2019 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this opinion of the Board.8
Issued: March 10, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees' Compensation Appeals Board

7

FECA Procedure Manual, supra note 5 at Chapter 3.500.4.b(3); Raymond E. Heathcock, supra note 5.

8

Christopher J. Godfrey, Deputy Chief Judge, was no longer a member of the Board after January 20, 2021.

4