United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JESSE BROWN VA MEDICAL CENTER,
Chicago, IL, Employer
__________________________________________

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

Docket No. 21-0020
Issued: October 22, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 7, 2020 appellant, through counsel, filed a timely appeal from an August 21,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right foot condition
causally related to the accepted October 19, 2018 employment incident.
FACTUAL HISTORY
On November 2, 2018 appellant, then 49-year-old a medical support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on October 19, 2018 a large wooden panel from
under the sink fell off and hit her right shin, slid down her right leg, and landed on top of her right
foot. She stated that she had several moderate to severe contusions from the top of her right shin
down her right leg. On the reverse side of the claim form, appellant’s supervisor acknowledged
that appellant was injured in the performance of duty. Appellant did not stop work.
In support of her claim, appellant submitted a January 4, 2019 report by Dr. Tara Sakevich,
a podiatrist. Dr. Sakevich noted appellant’s history of injury that on October 19, 2018 the bottom
of a sink slid down her leg and landed on the instep of her right foot and caused her pain, burning,
and tingling. Appellant stated that continued weight bearing and activity increased her symptoms.
Dr. Sakevich noted that an x-ray of appellant’s foot showed no recent fracture or dislocation, and
a magnetic resonance imaging (MRI) scan on November 16, 2018 showed a right foot type II
accessory navicular which demonstrated mild edema and a subtle nondisplaced fracture, mild
osteoarthritis of the MTP joint with mild hallux valgus, and atrophy of the abductor digiti minimi
muscle. She assessed appellant’s condition as crush neuropraxia of common peroneal and
fibromyalgia.
On January 4, 2019 Dr. Michael Czurylo, a podiatrist, opined that appellant could return
to work full time with limitations, and could likely return to work without limitations on
February 4, 2019.
OWCP received a progress note dated January 24, 2019 from Dr. Lawrence Marczak, a
podiatrist. Dr. Marczak noted Dr. Skevich’s previous diagnoses and indicated that appellant’s
electromyogram showed no abnormalities.
OWCP received a report dated March 11, 2019 from Dr. Huan J. Chang, a rheumatology
specialist. Dr. Chang stated that appellant recently suffered an injury which required her to wear
a hard boot which has aggravated her fibromyalgia. He opined that it was very possible that
appellant’s foot injury and the hard boot exacerbated her fibromyalgia.
Appellant also submitted an undated report, received on March 26, 2019, from Dr. Czurylo
in which he stated that appellant’s injury on October 19, 2018 exacerbated her fibromyalgia
condition.
In a development letter dated January 22, 2020, OWCP advised appellant that her claim
had been reopened and additional factual and medical evidence was necessary to establish her
claim. Specifically, it indicated that appellant did not establish that she actually experienced the
incident or employment factor alleged to have caused injury and a physician ’s opinion as to how

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her injury resulted in the condition diagnosed had not been provided. OWCP also attached a
questionnaire for her completion. It afforded appellant 30 days to submit the necessary evidence.
In a separate development letter of even date, OWCP requested additional medical
evidence from Dr. Chang establishing appellant’s pre-injury baseline of her fibromyalgia
condition. It requested that he provide an explanation of the physiological process as to how the
date of injury events worsened the preexisting fibromyalgia and a detailed medical report
explaining whether this was temporary or permanent aggravation of her preexisting conditions.
By decision dated February 24, 2020, OWCP accepted that the October 19, 2018 incident
occurred as alleged, but denied appellant’s claim finding that causal relationship had not been
established.
In a letter dated March 3, 2020, appellant, through counsel, requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review. The hearing was held on
June 10, 2020.
OWCP thereafter received a series of progress notes from the employing establishment
medical clinic. In a report dated October 19, 2018, Dr. Scott Sorensen, a Board-certified
diagnostic radiology specialist, related that x-ray of appellant’s foot revealed no evidence of an
acute fracture or dislocation. He noted that appellant’s previous conditions of mild hallux valgus
deformity, or bunion, and mild degenerative changes remained unchanged. In addition,
Dr. Sorensen noted that the appellant had a type II accessory navicular bone, or extra bone. He
diagnosed appellant with a minor abnormality.
In a report dated November 16, 2018, Dr. Antonella Lostumbo, a radiology specialist,
indicated that an MRI scan of appellant’s right foot revealed mild edema and a subtle nondisplaced
fracture. She stated that the appellant had a mild first metatarsophalangeal joint space narrowing
with a mild hallux valgus deformity and periarticular spurring as noted on prior radiographs.
Dr. Lostumbo also diagnosed her with mild flexion deformities of the lesser toes and a small cyst.
In a report dated June 6, 2019, Dr. Yousef M. Yasin, a Board-certified diagnostic radiology
specialist, noted that x-ray of appellant foot found no acute fracture or malalignment. He found a
mild valgus deformity with a first MPT joint angle of 17 degrees. Dr. Yasin diagnosed the
appellant with an abnormality.
In a report dated August 7, 2019, Dr. Lostumbo, found the appellant had a small amount
of posterior tibiotalar and talocalcaneal fluid as well as retrocalcaneal fluid. She also noted there
was a mild subcutaneous edema about the ankle. Dr. Lostumbo related the appellant had a mild
edema in the flexor halluces longus and peroneal brevis muscles and a mild Achilles paratenonitis,
and she listed appellant’s diagnosis as a minor abnormality.
OWCP also received an additional series of progress notes. In a note dated November 5,
2018, Dr. Megan Rae Leahy, a podiatrist, related that appellant had throbbing pain that had been
worsened since her injury. She noted that appellant was previously diagnosed with fibromyalgia.
Dr. Leahy diagnosed her with a crush injury or bone bruising and found no fractures or
dislocations. She ordered an MRI scan to further evaluate soft tissue/bone injury. Dr. Leahy also
ordered a CAM boot and instructed appellant to wear it at all times.
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In a note dated November 26, 2018, Dr. Michael Oster, a podiatrist, related that appellant
had noticed a knot with some swelling and bruising of her right foot. Appellant stated that her
previous treatment had helped temporarily but continued weight bearing and activity made her
pain worse. Dr. Oster noted that there was no fracture or dislocation; however, the MRI scan found
soft tissue injury and a bone edema. He ordered compression stockings and a CAM boot.
In a note dated December 20, 2018, Dr. Kristopher M. Lopez, a Board-certified podiatric
surgery specialist, related that appellant was in immediate pain. He noted appellant had no
fractures or dislocations. Dr. Lopez ordered compression stockings, and provided an injection for
pain relief, and a soft cast for her right leg.
In a note dated January 14, 2019, Dr. Chang related that appellant was seen for a
fibromyalgia follow up. He noted appellant’s complaint that the cold weather worsened her pain.
On March 26, 2019 Dr. Lopez noted that appellant related that her condition had only
improved 20 percent since October 2018. He instructed her to have limited activity and continue
wearing compression stockings. In addition, appellant was instructed to continue physical therapy.
In a note dated June 6, 2019, Dr. Oster related that appellant had a stabbing pain in her
midfoot which occurred twice daily. He indicated that appellant could be having some posttraumatic arthritis in her midfoot joint from the traumatic event.
In notes dated July 2 and 30, 2019 from Dr. Luke Kovatch, a podiatrist, related that
appellant had stabbing pain in the midfoot that occurred once or twice daily. Dr. Kovatch stated
that her symptoms are a combination of midfoot joint inflammation and arthritis and neuritis
resulting from the injury. In an addendum report dated August 9, 2019, he related that appellant’s
August 6, 2019 right ankle MRI scan did not reveal any real change. Dr. Kovatch noted diagnoses
of right ankle mild Achilles paratenonitis, and no significant change in mild high T2 signal/edema
in a type II accessory navicular which was nonspecific, and maybe secondary to abnormal stress
response.
On August 5, 2019 Dr. Chang related that appellant’s feet were painful and that she had
stiffness everywhere. He also stated that she had plantar fasciitis and flat feet.
In a report dated December 9, 2019, Dr. Chang related that appellant had been under his
care for over 10 years. During that time, appellant’s condition had waxed and waned but her
arthritis and pain had improved to the point that she co uld return to work in September 2018.
Dr. Chang related that in October 2018 a panel of wood fell on her foot, which fractured her foot
and required that she wear a boot for several weeks. Appellant then developed an imbalance in
her body and was unable to the boot for the full period, and therefore required a longer period of
time to recover from the injury. Dr. Chang also noted that appellant had to quit her job to fully
recuperate.
By decision dated August 21, 2020, an OWCP hearing representative affirmed the
February 24, 2020 decision. She found that appellant had not established that her diagnosed right
foot conditions were causally related to the accepted employment incident.

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LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of th e United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
There are two components involved in establishing fact of injury. 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. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence. 7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,

3

Supra note 2.

4

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

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

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

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

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right foot
condition causally related to the accepted October 19, 2018 employment incident.
Appellant submitted progress reports from a number of treating podiatrists at the
employing establishment medical clinic, which noted diagnoses including right foot accessory
navicular with mild edema, subtle nondisplaced fracture, mild osteoarthritis of the MTP joint with
mild hallux valgus, atrophy of the abductor digiti minimi muscle, crush neuropraxia of the
common peroneal, and fibromyalgia. These reports provided no opinion regarding the cause of
the diagnosed conditions. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition or disability is of no probative value on the issue
of causal relationship.11 These reports are therefore insufficient to establish appellant’s claim.
In an undated letter received on March 26, 2019, Dr. Czurylo indicated that appellant’s
injury on October 19, 2018 exacerbated her fibromyalgia condition. OWCP received a note dated
June 6, 2019 from Dr. Oster wherein he related that appellant could be having some post-traumatic
arthritis in her midfoot joint from the traumatic event, and notes dated July 2, and 30, 2019 from
Dr. Kovatch which stated that appellant’s symptoms are a combination of midfoot joint
inflammation and arthritis and neuritis resulting from the injury. Although these notes indicated
that the October 19, 2018 incident could be a contributing factor to appellant’s diagnosed right
foot conditions, they did not explain how the accepted incident would have physiologically caused
the diagnosed conditions. The Board has held that generalized statements do not establish causal
relationship as they are unsupported by adequate medical rationale explaining the
pathophysiologic mechanism by which the accepted employment duties caused, aggravated, or
accelerated the employee’s diagnosed medical conditions. 12 These reports are, therefore,
insufficient to establish appellant’s claim.
OWCP also received several reports from Dr. Chang, a rheumatologist. In a report dated
March 11, 2019, Dr. Chang stated that it was very possible that appellant’s foot injury and the hard
boot she was treated with exacerbated her fibromyalgia. In a letter note December 9, 2019, he
explained that appellant had been under his care for the past 10 years. Dr. Chang related that
appellant had returned to work in September 2018, but in October a panel of wood fell on her foot
and fractured her foot. He related that the fracture required appellant to wear a boot for several
weeks, which caused imbalance and pain in her body. While Dr. Chang opined that the injury was
a contributing factor to her fibromyalgia, he did not explain with rationale how the employment
injury and subsequent treatment would have physiologically caused the diagnosed conditions. The
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
L.C., Docket No. 19-1301 (issued January 29, 2020); R.D., Docket No. 18-1551 (issued March 1, 2019).
11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12

See A.P., Docket No. 19-0224 (issued July 11, 2019); K.W., Docket No. 10-0098 (issued September 10, 2010).

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need for a rationalized medical opinion was particularly important because appellant had
preexisting arthritis and fibromyalgia conditions.13 The Board, therefore, finds that his reports are
insufficient to establish appellant’s claim.
Appellant submitted several radiology reports dated October 19 and November 16, 2018,
June 6 and August 7, 2019. The Board has held that diagnostic tests, 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, the above- mentioned
radiology reports are insufficient to meet appellant’s burden of proof.
As there is no rationalized medical evidence of record establishing that appellant’s
diagnosed right foot conditions were causally related to the accepted employment incident,
appellant has not met her burden of proof to establish that the diagnosed condition was causally
related to the accepted October 19, 2018 employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her right
foot conditions were causally related to the accepted October 19, 2018 employment incident.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).
J.G., Docket No. 20-0009 (issued September 28, 2020). See also R.D., Docket No. 18-1551 (issued March 1, 2019).
14

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

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ORDER
IT IS HEREBY ORDERED THAT the August 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 22, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
DEFENSE INTELLIGENCE AGENCY,
Tampa, FL, Employer
__________________________________________

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

Docket No. 18-0268
Issued: October 17, 2018

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 November 20, 2017 appellant filed a timely appeal from an October 17, 2017 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 the claim.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional condition
in the performance of duty.
FACTUAL HISTORY
On July 28, 2017 appellant, then a 56-year-old supervisory budget analyst, filed an
occupational disease claim (Form CA-2) alleging that she experienced an emotional condition due

1

5 U.S.C. § 8101 et seq.

to retaliation for reporting her concerns of a hostile work environment. She stopped work on
July 13, 2017.
In a July 10, 2017 report, Carrie Springer, Ph.D., a licensed psychologist, and in July 20
and 25, 2017 reports, Dr. Troy Noonan, a Board-certified psychiatrist, diagnosed post-traumatic
stress disorder (PTSD) primarily related to appellant’s work environment.
In a July 31, 2017 supplemental statement, appellant related that her work-related PSTD
started when she teleworked as a budget analyst and after she began her supervisory position as a
branch chief on March 20, 2016. She noted teleworking for almost two years in the same office
before accepting the branch chief position. When appellant teleworked, she experienced problems
with M.B., the former deputy chief. She alleged that M.B. was the responsible government contact
for drug testing and that she was selected for a random drug test. After appellant commented on
the testing procedures, she believed an investigation ensued, which caused bias and retaliation by
M.B. as she was again randomly selected for the next drug testing event. In July 2015, M.B.
refused to sign-off on appellant’s telework agreement paperwork, which she had prepared 90 days
in advance of expiration of her telework agreement, and signed it approximately four days before
it expired. Appellant alleged that the delay caused her stress as to whether she would have a job
and/or be approved for telework the next year. She indicated that she then applied for and accepted
the supervisory position effective March 20, 2016.
From March 20 through July 27, 2016, appellant alleged 35 incidents of harassment and
retaliation from upper management. Beginning March 20 through July 22, 2016, M.B. harassed
her regarding her requests to work beyond the 80-hour pay period, which she needed in order to
complete a project M.B. had assigned her. On several occasions, including but not limited to
March 25 and 31, April 8 and 11, June 16, July 11, 22, and 24, 2016, she alleged that M.B.
subjected her to unwelcome comments and conduct when she referred to subordinate employees’
race and targeted female employees for criticism during meetings, even after appellant provided
written and verbal indications that she was uncomfortable with M.B.’s comments. On April 20,
2016 M.B. prevented her from performing her supervisory duties when she directed her not to
update her subordinate employees’ performance objectives.
On June 16, 2016 appellant reported her concerns of hostile work environment and
discrimination of her employees to upper management. Thereafter, she alleged M.B. and Division
Chief D.H., retaliated against her. On June 17, 2016 M.B. made harassing and negative statements
regarding her performance in front of a work colleague. On June 21, 2016 D.H. verbally counseled
her for allegedly unprofessional conduct and going “behind his back” to report her concerns. He
demanded a detailed e-mail of what was discussed. Between June 16 and July 11, 2016, M.B. and
D.H. significantly increased the number of tasks assigned to her. She expressed her concerns
regarding the extra workload in a July 11, 2016 letter. On July 11, 2016 M.B. subjected her to
unwelcome conduct when she touched her right shoulder, arm, and thigh and leaned over her to
type on her keyboard.
On July 13, 2016 appellant reported M.B.’s continued harassment of her and the hostile
work environment to K.L., deputy director, who directed her to file a complaint with the Office of
the Inspector General (OIG) as opposed to an Equal Employment Opportunity (EEO) complaint.
On July 27, 2016 M.B. and D.H. directed her to stop all telephone calls and e-mails to M.B., stop

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working on weekends, and to not to work additional hours that would count as compensatory time
without prior approval. Appellant asserted that M.B. was removed from her position as a result of
her OIG complaint and, on November 20, 2016, D.W. became the new deputy division chief.
On November 20, 2016 D.H. and D.W. held a meeting where her subordinate employees
were allowed to air any issues they harbored against her, which subjected her to embarrassment
and obstructed her ability to be an effective supervisor. On December 6, 2016 M.B. rater, and
D.H. reviewer, provided her a negative and inaccurate performance appraisal of “3” for Fiscal
Year 2016, which was the lowest she had ever received and made no sense given her contributions.
On December 6, 2016 appellant notified D.W. that she had been diagnosed with PTSD.
Beginning on December 6, 2016 and continuing, upper management failed to accommodate her
requests for reasonable medical accommodations, violated the Rehabilitation Act, and subjected
her to a separate approval process after partial accommodations were granted. On February 17,
2017 D.W. verbally counseled her for disrupting the work environment in front of one of
appellant’s subordinate employees. On March 1, 2017 D.H. sent her an e-mail indicating that he
was astonished that she “still did not know what was expected of her.” On March 18, 2017 D.W.
prevented her from performing her work assignments when she ordered her not to collaborate with
other divisions regarding a plan to merge the divisions. On March 20, 2017 D.H. and D.W. made
unwelcome comments and prevented her from meeting her performance objectives when they
attacked her “loyalty” and “professionalism” for briefing another individual on how to improve
the division.
On several dates, including but not limited to April 12 and May 4, 12, and 15, 2017, she
alleged D.W. subjected her to unlawful medical inquires, which were overly broad in scope,
unnecessarily burdensome, and where she had already provided sufficient medical documentation.
On several dates, including but not limited to April 19 and May 5, 17, 18, 19, 22, 24, and 25, and
June 6, 2017, D.W. unlawfully disclosed her confidential medical information via shared e-mail
accounts without her consent and without proper document classification markings.
On several dates, including but not limited to April 12 and May 4 and 10, 2017, D.W.
terminated her approval to receive leave from the employing establishment’s Leave Bank Program.
On several dates, including but not limited to April 12 and May 4, 8, 17, and 30, 2017, D.W.
ordered her to report to work or work from home to meet excess demands for Leave Bank
Approval, despite being on approved full-time or part-time leave under the Family and Medical
Leave Act (FMLA). On May 3, 2017 D.W. subjected her to unwelcome comments and chilling
behavior when she shared with her that D.H. “chewed her butt out,” or words similar to that effect,
for having her report to work while on FMLA. On May 5, 2017 D.W. subjected her to unwelcome
comments and behavior when, in response to her attempt to discuss reasonable accommodations,
D.W. told her she was unfit for duty and ordered her to leave the workplace and request leave.
On June 25 and July 2 and 9, 2017 D.W. refused to meet with her and be briefed on tasks
with approaching suspense dates, knowing that she could not finalize the tasks without first
completing the briefing. On July 3 and 5, 2017 D.W. engaged in an intimidating and threatening
manner toward her when she told her that no one trusted, respected, or liked her, and then sent her
an intimidating e-mail requesting a meeting about a subject appellant thought was resolved, which

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caused C.G., a senior representative, to recommend that D.W. be issued an anti-harassment
reprimand.
On July 14, 2017 D.W. denied appellant’s request to utilize the Leave Bank for doctor
approved leave in violation of the Rehabilitation Act on the basis that her disabling condition was
“chronic.” On July 14, 2017 D.W. wrote an e-mail noting her intent to deny appellant’s requests
for leave without pay for the remaining time that her physician would not allow her to return to
work and threatened her with absent without leave.
On July 27, 2017 D.W. e-mailed appellant about the procedure to request reasonable
accommodations through the EEO office. On July 28, 2017 appellant requested a reasonable
accommodation through the EEO for leave, paid or leave without pay, a change of supervisor, and
permission to relocate.
In a September 7, 2017 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised appellant of the medical and factual
evidence necessary and instructed her to respond to the attached questionnaire to substantiate the
factual elements of her claim. OWCP afforded appellant 30 days to submit the necessary evidence.
In a September 7, 2017 letter, OWCP requested that the employing establishment respond
to appellant’s factual allegations and provide additional information. It afforded 30 days for a
response. The employing establishment did not provide a response.
On September 28, 2017 appellant responded to OWCP’s questionnaire. She stated that she
immediately began experiencing a hostile work environment due to discriminatory acts towards
herself and her subordinates by her immediate supervisor when she was hired into her position
effective March 20, 2016 and that the harassment was daily. Appellant indicated that she had filed
an OIG complaint, which resulted in the removal of her initial supervisor. She also filed an
informal discrimination complaint and a formal complaint on September 19, 2017, which were
pending an investigation. Appellant noted the effect her medical diagnosis of acute PTSD had on
her work and home life. She also noted a prior history of depression, but stated that the depression
was well controlled until she began her current position on March 20, 2016. Copies of the OIG
complaint, a November 3, 2016 letter from the OIG, and informal and formal complaints of
discrimination were received along with additional medical evidence.
The November 3, 2015 letter from the OIG found that an informal climate assessment of
appellant’s division resulted in insufficient information to support further inquiry or investigation
into the unprofessional relationship, time and attendance fraud, and improper qualified personnel
hiring. The letter indicated that it referred the hostile working environment allegation and the
results of the informal J-21 climate assessment to the J-2 leadership, who had taken action
concerning the matter. In a September 28, 2017 letter, appellant stated that the J-2 chain of
command had removed M.B. as her supervisor as a result of the OIG findings.
By decision dated October 17, 2017, OWCP denied appellant’s claim for an emotional
condition finding that she had not met her burden of proof to establish compensable employment
factors.

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LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.3
When an employee experiences emotional stress in carrying out his or her employment duties, and
the medical evidence establishes that the disability resulted from an emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of and in the course of
employment. This is true when the employee’s disability results from his or her emotional reaction
to a special assignment or other requirement imposed by the employing establishment or by the
nature of the work.4 Allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim.5
Where a claimant alleges compensable factors of employment, he or she must substantiate
such allegations with probative and reliable evidence.6 Personal perceptions alone are insufficient
to establish an employment-related emotional condition.7 On the other hand the disability is not
covered where it results from such factors as an employee’s fear of a reduction-in-force, or her
frustration from not being permitted to work in a particular environment, or to hold a particular
position.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.9 However, the Board has
held that, where the evidence establishes error or abuse on the part of the employing establishment
in what would otherwise be an administrative matter, coverage will be afforded.10 In determining

2

28 ECAB 125 (1976).

3

See Robert W. Johns, 51 ECAB 137 (1999).

4

Supra note 2.

5

J.F., 59 ECAB 331 (2008).

6

M.D., 59 ECAB 211 (2007).

7

Roger Williams, 52 ECAB 468 (2001).

8

See supra note 2.

9

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
10

See William H. Fortner, 49 ECAB 324 (1998).

5

whether the employing establishment erred or acted abusively, the Board will examine the factual
evidence of record to determine whether the employing establishment acted reasonably.11
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact, occur.12
Mere perceptions of harassment or discrimination are not compensable under FECA.13 A claimant
must substantiate allegations of harassment or discrimination with probative and reliable
evidence.14 Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred.15 A claimant must establish a factual basis
for his or her allegations of harassment or discrimination with probative and reliable evidence.16
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board notes that appellant has attributed her emotional condition in part to Cutler17
factors. Appellant alleged that from June 16 through July 11, 2016 she wrote letters expressing
her concerns about the ability to handle her workload when the number of tasks assigned to her
significantly increased; on March 18, 2017 she could not complete her work assignment because
D.W. ordered that she desist from collaborating with another division regarding a task to merge
divisions; and, on June 25 and July 2 and 9, 2017, she could not finalize her tasks before
completing a briefing with D.W. who declined to meet with her and be briefed on tasks which had
approaching suspense dates. Pursuant to Cutler18 these allegations could constitute compensable
employment factors if appellant establishes that her regular job duties or a special assignment
caused an emotional condition. The Board has held that overwork, when substantiated by
sufficient factual information to corroborate appellant’s account of events, may be a compensable
factor of employment.19 The Board finds, however, that appellant submitted no evidence
supporting her allegations of overwork or inability to do her work with regard to deadlines or
timeframes and that she was not provided with adequate tools to perform her job. Without

11

Ruth S. Johnson, 46 ECAB 237 (1994).

12

K.W., 59 ECAB 271 (2007); Robert Breeden, 57 ECAB 622 (2006).

13

M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006).

14

J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 12.

15

G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005); Penelope C.
Owens, 54 ECAB 684 (2003).
16

Beverly R. Jones, 55 ECAB 411 (2004).

17

Supra note 2.

18

Supra note 2.

19

See Bobbie D. Daly, 53 ECAB 691 (2002); T.M., Docket No. 15-1774 (issued January 20, 2016).

6

evidence substantiating these allegations, appellant has failed to meet her burden of proof to
establish a compensable factor of employment under Cutler.20
Appellant has also alleged error and abuse in administrative matters on the part of her
supervisors. These incidents identified by appellant include: being selected twice for random drug
testing; refusal and delay by management in signing off on her telework agreement; refusal of
requests for compensatory pay, leave, use of Leave Bank, and accommodation; comments
regarding her performance on June 16 and 17 and July 24, 2016 and March 20, 2017; verbal
counseling by management; an improper performance appraisal; being pressured to return to work
against her physician’s orders; and one instance of inappropriate touching.
As a general rule, a claimant’s reaction to administrative or personnel matters falls outside
the scope of FECA.21 Absent evidence establishing error or abuse, a claimant’s disagreement or
dislike of such a managerial action is not a compensable factor of employment.22 Appellant’s
selection for drug testing, approval for telework, work assignments, management’s comments and
directives, verbally counseling, performance evaluation, and the handling of leave requests, and
the monitoring of appellant’s activities at work are administrative functions of the employer, and
not duties of the employee.23 Appellant has not established a compensable factor of employment
as she has not submitted corroborating evidence of error or abuse in these administrative and
personnel matters.24
Appellant has alleged that on several dates, management had unlawfully disclosed her
confidential medical information via shared e-mail accounts without her consent and without
proper document classification markings. The Board has held that the unauthorized disclosure of
confidential information can be a compensable factor of employment if corroborated by factual
evidence and causally connected to the claimant’s federal employment.25 The question becomes
whether the disclosure of appellant’s confidential medical information was necessary to address
management’s issues at the time of the e-mails.26 However, the record is devoid of any information
as to why appellant’s confidential medical information was released and what, if anything, was
done with the information. As such appellant has not established that this alleged action was a
compensable factor of employment.
Appellant has further attributed her emotional condition to retaliation, discrimination,
harassment, and a hostile work environment by management during the period March 20, 2016 to
20

K.S., Docket No. 15-1426 (issued December 29, 2015).

21

Carolyn S. Philpott, 51 ECAB 175 (1999).

22

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

23
See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
24

Supra note 22.

25

Dorthea M. Belnavis, 57 ECAB 331 (2006).

26

See G.R., Docket No. 15-0052 (issued September 22, 2017).

7

July 27, 2017. However, for harassment to give rise to a compensable disability under FECA,
there must be evidence that harassment did in fact occur. Mere perceptions of harassment are not
compensable under FECA.27 To establish entitlement to benefits, a claimant must establish a
factual basis for the claim by supporting his or her allegations with probative and reliable
evidence.28
The Board notes that appellant indicated that she had filed an OIG complaint against M.B.,
her former supervisor, and that the actions in the identified incidents were retaliatory, harassment,
or discriminatory.29 The November 3, 2015 letter from the OIG found that an informal climate
assessment of appellant’s division resulted in insufficient information to support further inquiry or
investigation into the unprofessional relationship, time and attendance fraud, and improper
qualified personnel hiring. However, the OIG letter indicated that it had referred the hostile
working environment allegation and the results of the informal J-21 climate assessment to the J-2
leadership, who had taken action concerning the matter. Appellant alleged that her OIG complaint
resulted in the removal of M.B. as her supervisor. The Board notes that OWCP had allotted time
for the employing establishment to respond to appellant’s allegations. However, no response was
received. Nevertheless, OWCP found that appellant had not established any compensable factors
of employment.
OWCP procedures provide:
“If an employing [establishment] fails to respond to a request for comments on the
claimant’s allegations, the [claims examiner] may usually accept the claimant’s
statements as factual. However, acceptance of the claimant’s statements as factual
is not automatic in the absence of a reply from the [employing establishment],
especially in instances where performance of duty is questionable. The Board has
consistently held that allegations unsupported by probative evidence are not
established. James E. Norris, 52 ECAB 93 (1999); Michael Ewanichak, 48 ECAB
364 (1997). The [claims examiner] should consider the totality of the evidence and
evaluate any inconsistencies prior to making a determination.”30
Given the facts and circumstances of this case, the Board finds that it is unable to make an
informed decision in this case regarding appellant’s allegations of error or abuse of administrative

27

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).
28

Alice M. Washington, 46 ECAB 382 (1994); N.D., Docket No. 16-0823 (issued August 18, 2017); E.C., Docket
No. 15-1743 (issued September 8, 2016).
29

Appellant also filed informal and formal EEO complaints, results which are pending.

30
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(d)(1)
(June 2011).

8

actions and a hostile work environment as the employing establishment did not respond to the
request for comment made by OWCP in the September 7, 2017 development letter.31
Although it is a claimant’s burden of proof to establish his or her claim, OWCP is not a
disinterested arbiter, but rather shares responsibility in the development of the evidence,
particularly when such evidence is of the character normally obtained from the employing
establishment or other government source.32 Since appellant’s allegations indicate that the
employing establishment would have in its possession evidence relevant to appellant’s
administrative and harassment allegations, OWCP should obtain a response from the employing
establishment to the allegations of harassment and administrative error or abuse and any relevant
evidence or argument.33
This case will accordingly be remanded to OWCP for further development of the evidence
regarding appellant’s allegations of harassment.34 It shall request that the employing establishment
provide a detailed statement and relevant evidence and/or argument regarding appellant’s
allegations. Following this and any necessary further development, OWCP shall issue a de novo
decision regarding whether appellant has established an emotional condition in the performance
of duty.
CONCLUSION
The Board finds that the case is not posture of decision.

31

See R.A., Docket No. 17-1030 (issued April 16, 2018).

32
See K.W., Docket No 15-1535 (issued September 23, 2016) (remanding the case for further development by
OWCP when the employing establishment did not provide an investigative memorandum in an emotional condition
claim based on sexual harassment).
33
Id.; see 20 C.F.R. § 10.117(a), which provides that an employing establishment that has reason to disagree with
any aspect of the claimant’s report shall submit a statement to OWCP that specifically describes the factual allegation
or argument with which it disagrees and provide evidence or argument to support its position. The employing
establishment may include supporting documents such as witness statements, medical reports or records, or any other
relevant information.
34

See R.A., Docket No. 17-1030 (issued April 16, 2018).

9

ORDER
IT IS HEREBY ORDERED THAT the October 17, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further development consistent with this decision of the Board.
Issued: October 17, 2018
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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wilmington, DE, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1855
Issued: July 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 6, 2013 appellant filed a timely appeal from a July 1, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied her claim for an additional
schedule award. 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 the case.
ISSUE
The issue is whether appellant has more than 20 percent of the right lower extremity for
which she received a schedule award and whether appellant has more than 52 percent
impairment of the bladder, or of the uterus/cervix and vulva/vagina, for which she received a
schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On November 28, 1979 appellant, then a 24-year-old mail handler, injured her low back
when she was lifting sacks of mail. OWCP accepted an acute lumbosacral strain, displacement
of a lumbar intervertebral disc without myelopathy, other urinary incontinence, mononeuritis of
the lower limb, decubitus ulcer bilaterally, atony of the bladder, cauda equine syndrome with
neurogenic bladder. It authorized surgery and on February 26, 1986 appellant underwent a left
hemilaminectomy at L4-5 with excision of nucleus pulposus fragment and on June 12, 1987 she
underwent a total laminectomy, L3-4 with removal of right L3-4 herniated disc fragment.
Appellant worked intermittently thereafter.
On November 19, 1993 appellant requested a schedule award. On July 18, 1994 an
OWCP medical adviser opined that, under the American Medical Association, Guides to the
Evaluation of Permanent Impairment,2 appellant had 20 percent impairment to the right leg for
severe S1 nerve injury resulting in loss of function due to strength deficit, and 37 percent
impairment to the left leg for severe and significant damage to the L5 nerve resulting in motor
deficit.
In a decision dated October 31, 1994, OWCP granted her a schedule award for 57 percent
impairment to both legs for the period March 16, 1994 to May 8, 1997.
Appellant came under the treatment of Dr. Howard C. Beane, a Board-certified urologist,
from September 7, 1989 to July 22, 1994 for a bladder disorder, urge incontinence, secondary to
a disc problem in 1987. Dr. Beane diagnosed paralysis and neurogenic bladder secondary to
surgery for a ruptured disc in 1987 occurring after unloading mail.
In a June 14, 1995 decision, OWCP granted appellant a schedule award for 52 percent
impairment of the bladder and vulva/vagina. The award ran from May 8, 1997 to May 24, 1999.
On May 5, 2010 appellant filed a claim for an additional schedule award. On May 17,
2010 OWCP requested that she submit a report from her treating physician in accordance with
the sixth edition of the A.M.A., Guides.3
Appellant submitted reports from Dr. Jay J. Cho, a Board-certified physiatrist, who
treated her for a work-related spinal cord injury. On October 30, 2010 Dr. Cho noted findings of
L5-S1, L4 and S1 sensory absence, reduced muscle strength on ankle dorsiflexion was 1/5,
plantar flexion was 1/5, hip girdle muscle shows abduction of 4/5, and extension of 4/5, with
neurogenic bowel and bladder dysfunction (cauda equine syndrome) which was permanent, flail
ankle bilaterally and required medication for her bladder and a urinary bladder catheter. He
noted that appellant reached maximum medical improvement from the spinal cord injury and had
56 percent whole body impairment under the sixth edition of the A.M.A., Guides. He
incorporated a physical therapist’s functional capacity evaluation. In an August 12, 2010 report,
a physical therapist noted, for lumbar and cauda equine syndrome, appellant was class 3, with a
2

A.M.A., Guides (4th ed. 1993).

3

Id. at (6th ed. 2008).

2

grade modifier for functional history of 3, the grade modifier for physical examination of 4 for a
net adjustment to class E for 33 percent impairment. He noted neurogenic bladder was rated at
20 percent impairment, neurogenic bowel was rated at 10 percent impairment, neurogenic sexual
dysfunction was rated at 10 percent for a combined 56 percent whole person impairment.
In a January 13, 2011 report, Dr. Arnold T. Berman, a Board-certified orthopedic surgeon
and an OWCP medical adviser, reviewed Dr. Cho’s October 30, 2010 report. He noted that
FECA did not permit schedule awards for impairment of the spine; but the condition could be
considered if it results in impairment to an extremity or other scheduled member. The medical
adviser noted that an award may not be made for whole person impairment. Dr. Berman noted
that spinal nerve injury could be the basis of impairment awards of an extremity using the
July/August 2009 “The Guides Newsletter.” He referenced the proposed Table 2, Spinal Nerve
Impairments, Lower Extremity Impairments, and noted appellant had moderate-to-severe motor
deficit of both the right and left lower extremities in the L5 and S1 nerve roots. Appellant had a
class 1, grade C of the L5 nerve root with 13 percent impairment of the right lower extremity and
13 percent impairment of the left lower extremity. For the S1 nerve root, she had a class 1, grade
C, severe to very severe motor deficit with 13 percent impairment of the right lower extremity
and 13 percent impairment of the left lower extremity. Dr. Berman concluded that appellant had
26 percent impairment of the left lower extremity and 26 percent impairment of the right lower
extremity or a total impairment of 52 percent.
In a February 16, 2011 decision, OWCP denied appellant’s claim for an additional
schedule award.
On July 5, 2011 appellant requested reconsideration. She submitted a July 1, 2011 report
from Dr. Cho, who noted that the August 12, 2010 physical therapist’s report had stated
miscalculations. In an April 26, 2011 functional capacity evaluation addendum, the physical
therapist noted that the revised impairment calculation for the lumbar spine with cauda equine
syndrome was class 4 with grade modifiers for functional history of 3, physical examination of 4
and clinical studies of 4 for a net adjustment value and assigned grade modifier was class E for
lumbar impairment of 33 percent. The neurogenic bladder warranted 20 percent impairment,
neurogenic bowel 20 percent impairment, sexual dysfunction 10 percent impairment, and
dysthetic pain 10 percent impairment. The physical therapist combined these values to find that
appellant had 65 percent whole person impairment.
In a decision dated September 7, 2011, OWCP denied modification of the February 16,
2011 decision.
On October 1, 2011 appellant requested reconsideration. She submitted an October 1,
2011 report from Dr. Cho who treated her for paralysis of both ankle muscles, hip girdle muscle
weakness, neurogenic bowel and bladder dysfunction also known as cauda equine syndrome.
Appellant required bladder medication and a urinary catheter. Dr. Cho noted findings of limited
lumbar spine mobility, bilateral foot drop, atrophy below the knees and feet with discoloration,
muscle strength in the ankle was 1/5, muscle strength in the hip flexor was 4/5, a practically flail
left ankle. Appellant had significant impairment in the pinprick examination in the foot and
buttocks due to the spinal cord injury. Dr. Cho noted his 2007 impairment rating of 57 percent

3

impairment under the fifth edition of the A.M.A., Guides. He increased this rating to 65 percent
impairment under the sixth edition of the A.M.A., Guides. Dr. Cho noted that appellant’s
condition had progressively deteriorated due to permanent spinal nerve damage causing
decreased muscle strength in the ankle and leg and neurological symptoms in the bladder.
In a report dated October 21, 2011, Dr. Berman stated that Dr. Cho’s ratings were not
consistent with OWCP guidelines, specifically that a whole person impairment was not allowed.
He advised that the findings provided by Dr. Cho were no different than on prior examination
and advised that the impairment rating was based upon Dr. Cho’s physical examination of
October 2011. Based on these physical examination findings Dr. Berman opined that appellant
had 26 percent impairment to each leg due to moderate or very severe motor deficit of the L5 and
S1 nerve roots. He opined that as appellant sustained 52 percent of both lower extremities, there
was no evidence of greater impairment than the 57 percent previously awarded.
In a decision dated January 4, 2012, OWCP denied modification of the February 16, 2011
decision.
Appellant requested reconsideration and submitted reports from Dr. Cho dated
December 13, 2011 to June 26, 2012. Dr. Cho opined that appellant was totally disabled and her
spinal cord injury was permanent. An April 12, 2012 report from Dr. Hans Pinkert, a Boardcertified internist, noted treatment for chronic bilateral foot pain and severe peripheral
neuropathy. He advised that appellant’s history was significant for ruptured discs and low back
surgery.
In a July 10, 2012 decision, OWCP denied appellant’s request for reconsideration on the
grounds that the evidence submitted was insufficient to warrant further merit review.
Appellant requested reconsideration. In a February 6, 2013 report, Dr. Cho addressed
appellant’s prior back surgeries and listed her medical conditions. These included permanent
spinal cord injury resulting in cauda equine syndrome that caused pain with loss of sensation in
the bladder and vagina; paralysis of the muscle in the ankles and hip girdle muscle requiring use
of a brace; lack of feeling with development of neuralgia and continuous pain; and loss of nerve
function causing poor muscle control and circulation in the legs. Appellant required mechanical
or digital stimulation and a catheter for the bladder and bowel. She was not able to function
sexually and had no sensation in the vaginal area. Appellant had recurrent urinary tract
infections due to paralysis of the bladder with motor sensory paralysis in the legs, muscle
weakness, sensory loss and limited ambulation. Based on an October 3, 2012 functional capacity
evaluation, her impairment was rated based on pain, motor weakness, cauda equine syndrome,
neurogenic bowel and bladder and sexual dysfunction. Dr. Cho reiterated the 67 percent whole
person impairment rating under the A.M.A., Guides. The October 3, 2012 functional capacity
evaluation report from the physical therapist noted decreased lumbar range of motion, decreased
bilateral hip strength, absent bilateral ankle strength, and absent reflexes in the bilateral patella
and Achilles tendons. The physical therapist noted increased edema and redness of the skin on
both ankles, feet and toes. Appellant could not discriminate sharp/dull or hot/cold sensory input
over either leg or feet. She had two open sores on a toe, with pain in the lumbar, left buttock and
left foot. The physical therapist was unable to classify her physical demand level.

4

In a May 29, 2013 report, Dr. Berman reviewed Dr. Cho’s February 6, 2013 report and
determined that his impairment rating was again not consistent with OWCP guidelines. He
stated that appellant would require continued use of medication to control pain and her bowel
and bladder function, noting recurrent urinary infections. Upon consideration of the February 6,
2013 report from Dr. Cho the previously recommended 52 percent impairment to both
extremities should stand as all operative factors had been considered. Dr. Berman noted that the
67 percent rating due to bowel and bladder problems was inappropriate because a specific
organic basis was not verified for the urinary or bowel abnormalities. He stated that there was no
current basis for an additional award but recommended that appellant be reevaluated after
appropriate urologic testing.
In a decision dated July 1, 2013, OWCP denied appellant’s claim for an additional
schedule award. It found that OWCP’s medical adviser determined that the evidence did not
show greater permanent impairment than that previously paid. OWCP also noted that appellant
was previously granted a schedule award for 52 percent of the bladder but no increased
impairment had been shown.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.6 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.7 For decisions issued after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.8
For decisions issued after May 1, 2009, the sixth edition will be used.9
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).10 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Ausbon N. Johnson, 50 ECAB 304 (1999).

7

Supra note 5.

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

9

FECA Bulletin No. 09-03 (issued March 15, 2009).

10

A.M.A., Guides 494-531.

5

No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the implementing regulations.11 FECA identifies members such as the arm, leg,
hand, foot, thumb, finger and toes. It also specifies loss of hearing and vision, the loss of an eye
and serious disfigurement of the face, head or neck.12 Section 8107(c)(22) of FECA provides for
the payment of compensation for permanent loss of any other important external or internal
organ of the body as determined by the Secretary of Labor.13 The Secretary of Labor has made
such a determination, and pursuant to the authority granted in section 8107(c)(22), added the
breast, kidney, larynx, lung, penis, testicle, tongue, ovary, uterus/cervix, vulva/vagina and skin to
the compensation schedule.14 There is no statutory basis for payment of a schedule award for
impairment to the bladder, colon or rectum under FECA or in the regulations.15
ANALYSIS
Appellant’s claim was accepted by OWCP for acute lumbosacral strain, displacement of
lumbar intervertebral disc without myelopathy, other urinary incontinence, mononeuritis of the
lower limb, decubitus ulcer bilaterally, atony of the bladder, cauda equine syndrome with
neurogenic bladder. OWCP authorized surgery and on February 26, 1986 appellant underwent a
left hemilaminectomy at L4-5 with excision of nucleus pulposus fragment and on June 12, 1987
a total laminectomy, L3-4 with removal of right L3-4 herniated disc fragment. It has accepted
that she is permanently disabled. In its July 1, 2013 decision, OWCP found that appellant had
established no greater impairment to her legs and bladder.
Regarding appellant’s leg impairment, the Board notes that in 1993 appellant requested a
schedule award based on her accepted lumbar conditions. On July 18, 1994 an OWCP medical
adviser opined that, under the A.M.A., Guides,16 appellant had 20 percent impairment to the right
leg for severe S1 nerve injury resulting in loss of function due to strength deficit and 37 percent
impairment to the left leg for severe and significant damage to the L5 nerve resulting in motor
deficit. However, in its October 31, 1994 decision, OWCP improperly combined the impairment
of each leg and granted appellant one award for 57 percent impairment to both lower extremities.
OWCP failed to properly make awards in terms of impairment to each leg. FECA provides that
“in case of loss of use of more than one member or parts of more than one member … the
compensation is for loss of use for each member or part thereof, and the awards run

11

See J.W., 59 ECAB 308 (2008); Paul A. Zoltek, 56 ECAB 325 (2005); Leroy M. Terska, 53 ECAB 247 (2001).

12

5 U.S.C. § 8107(c).

13

Id. at § 8122(c)(22).

14

20 C.F.R. § 10.404(a); Marilyn S. Freeland, 57 ECAB 607 (2006).

15

Supra note 11; supra notes 4 and 5. D.J., Docket No. 11-1359 (issued February 24, 2012).

16

A.M.A., Guides (4th ed. 1993).

6

consecutively.”17 This error by OWCP contributed to subsequent error by Dr. Berman in
consideration of appellant’s claim for additional impairment. In an October 21, 2011 report, he
reviewed the physical examination findings provided by Dr. Cho to find that appellant had 26
percent impairment to each leg based on moderate or very severe motor deficit of the L5 and S1
nerve roots. Dr. Berman improperly added the impairment to each leg, 26 percent, to total 52
percent and found that this was less than the 57 percent previously awarded on October 31, 1994.
Appellant was denied any further schedule award for her right leg. In 1994, appellant was rated
with 20 percent impairment of the right leg. Dr. Berman’s October 21, 2011 report determined
that she had 26 percent impairment of the right leg, a 6 percent increase in impairment from
1994. Therefore, the Board finds that appellant has a total of 26 percent impairment to her right
leg.18
Regarding impairment to appellant’s bladder, or uterus/cervix and vulva/vagina, on
June 14, 1995 appellant was granted a schedule award for 52 percent of her bladder and
vulva/vagina. The Board notes that neither FECA nor OWCP’s implementing regulations
provide for a schedule award for the bladder or the bowel.19 A schedule award is not payable for
a member, function or organ of the body not specified in FECA or in the implementing
regulations.20 FECA does not provide for OWCP to add organs or functions to the compensation
schedule on a case-by-case basis and the Board does not have the power to enlarge the provisions
of the statute or regulations.21 Urinary incontinence may be assessed however as it relates to the
organs specified as schedule members.
Of the internal organs added to the schedule for injuries sustained on or after
September 7, 1974 are the uterus/cervix and vulva/vagina for which a total of 205 weeks of
compensation is provided.22 Appellant requested an additional schedule award for sexual
dysfunction and submitted a February 6, 2013 report from Dr. Cho, who rated whole person
impairment. As noted by Dr. Berman, there is no provision in FECA for a schedule award for
permanent impairment of the whole person.23 The Board notes that Dr. Berman did not address
permanent impairment utilizing Chapter 7 of the A.M.A., Guides as it pertains to consideration
of the urinary and reproductive systems. The A.M.A., Guides note that spinal cord injuries may
17

5 U.S.C. § 8107(c)(20); see R.B., Docket No. 13-904 (issued September 6, 2013) (FECA provides that lower
extremity impairments are rated for each member; the two members are not totaled into one sum for lower extremity
impairment); Erma L. Moore, Docket No. 99-1554 (issued September 25, 2000) (the fact that appellant established
that she had a 10 percent impairment of the left arm in 1996 and was evaluated as having a 2 percent impairment of
that arm in 1998 did not mean that OWCP could deny her claim for a permanent impairment of the right arm on the
grounds that she received a greater total award than she would be entitled to for both arms).
18

The medical evidence does not support greater than 37 percent impairment of the left leg, as previously
awarded.
19

See supra note 15.

20

A.M.A., Guides 494-531; see also L.W., Docket No. 13-715 (issued June 14, 2013).

21

Janet C. Anderson, 54 ECAB 394 (2003).

22

20 C.F.R. § 10.404(b).

23

See Tania R. Keka, 55 ECAB 354 (2004).

7

result in sexual dysfunction.24 The medical adviser also noted that appellant’s urological
abnormalities had not been properly evaluated and suggested that appellant should be
reevaluated after appropriate urologic testing. OWCP did not arrange for such evaluation or
testing.
Proceedings under FECA are not adversary in nature nor is OWCP a disinterested arbiter.
While the claimant has the burden to establish entitlement to compensation, it shares
responsibility in the development of the evidence. Accordingly, once OWCP undertakes to
develop the medical evidence further, it has the responsibility to do so in the proper manner.25
The Board will remand the case to OWCP for referral to an appropriate Board-certified
physician(s) knowledgeable in the application of the sixth edition of the A.M.A., Guides to
determine the extent of her permanent impairment. OWCP should provide an updated and
accurate statement of accepted facts that lists each accepted condition and the percentage of
impairment to each scheduled member. Following this and any other further development as
deemed necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that appellant has an additional six percent impairment of her right leg.
The medical evidence requires further development with regard to her permanent impairment to
other scheduled members.

24

A.M.A., Guides 130.

25

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

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ORDER
IT IS HEREBY ORDERED THAT the June 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed in part as modified, and set aside, in part. The
case is remanded for further development in accordance with this decision of the Board.
Issued: July 22, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.O., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Miami, FL, Employer
__________________________________________

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

Docket No. 10-1955
Issued: April 7, 2011

Case Submitted on the Record

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

JURISDICTION
On July 22, 2010 appellant filed a timely appeal from the May 11, 2010 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has more than a 12 percent impairment of his left leg.
FACTUAL HISTORY
On August 29, 1992, appellant, then a 40-year-old criminal investigator, injured his left
knee in the performance of duty when he stepped in a hole. The Office accepted his claim for
left cruciate ligament sprain and a torn posterior cruciate ligament mid substance with
1

5 U.S.C. §§ 8101-8193.

impingement of a portion of the ligament within the lateral compartment. Appellant underwent
posterior cruciate ligament reconstruction.
Appellant filed a claim for a schedule award. His orthopedic surgeon, Dr. John W. Uribe,
rated a 25 percent whole-body impairment and stated the percentage could be found in Table
16-1, page 495 of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009). The Office informed appellant that the Act did not compensate
whole-body or whole-person impairment ratings. It set forth specific information Dr. Uribe
needed to provide to support appellant’s schedule award claim, including a detailed description
of the impairment and a discussion of the rationale for calculating the impairment with
references to the applicable criteria in the A.M.A., Guides. The Office noted that Dr. Uribe
should refer to pages 28 to 30 of the A.M.A., Guides for specific information required in the
report.
Dr. Uribe subsequently found that appellant had reached maximum medical
improvement. Citing Table 16-3, page 509 of the A.M.A., Guides, he rated appellant’s
impairment: “[Appellant] has been left with a partial permanent impairment to the left knee of
12 percent. This is a result of his knee dislocation which occurred in November 1992, while on
active duty.”
An Office medical adviser noted that appellant had a posterior cruciate ligament
reconstruction and medial collateral ligament repair with mild expectant laxity, pain and arthritis.
Using Table 16-3, page 510 of the A.M.A., Guides, an Office medical adviser agreed with
Dr. Uribe’s 12 percent rating of the left leg. Dr. Uribe noted that functional history and physical
examination revealed a mild problem, while clinical studies showed a moderate pathology.
On May 11, 2010 the Office granted a schedule award for a 12 percent impairment of the
left lower limb. It awarded appellant 34.56 weeks of compensation for this impairment.
On appeal, appellant argues that his schedule award ($42,415.74) was negligible. He
notes that the injury impacted his life physically and mentally.2

2

Appellant requested an oral argument. On August 25, 2010 the Clerk of the Board advised him that oral
arguments were held only in Washington, DC, and that the Board was not responsible for travel or other incidental
expenses related to attending. The Board asked appellant to confirm by September 9, 2010 whether he still desired
the oral argument and informed him that it would decide the appeal on the record without oral argument if he did not
respond. The Board received no response.

2

LEGAL PRECEDENT
Section 8107 of the Act3 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment. The Office evaluates the degree of permanent impairment according to
the standards set forth in the specified edition of the A.M.A., Guides.4
The Act provides a maximum 288 weeks of compensation for the total loss of a leg, as
with amputation at the hip.5 Compensation for partial loss is proportionate.6
ANALYSIS
Diagnosis-based impairment is the primary method of evaluating the lower limb.
Impairment is determined first by identifying the relevant diagnosis, then by selecting the class
of the impairment (no objective problem, mild problem, moderate problem, severe problem, very
severe problem approaching total function loss), which will provide a default impairment rating,
and finally by adjusting the default rating up or down for grade, which is calculated using grade
modifiers or nonkey factors (functional history, physical examination, clinical studies).7
Dr. Uribe, the attending orthopedic surgeon, offered an impairment rating due to knee
dislocation. He cited a table, a page number and a class (mild problem) in the A.M.A., Guides,
but offered no explanation for this rating.
It appears that Dr. Uribe based his rating on a diagnosis of ruptured tendon. Appellant
did not have a ruptured tendon, but this is the only diagnosis on page 509 of the A.M.A., Guides
that will support a 12 percent impairment rating other than partial medial and lateral
meniscectomy, which also does not relate to his case.
The default impairment rating for a Class I ruptured tendon is 10 percent, but only if
appellant has a moderate motion deficit or significant weakness. Dr. Uribe offered no findings
on physical examination to support this classification. It does not appear that he based his
impairment rating on any current examination. To adjust the default rating upward to 12 percent,
Dr. Uribe would need to attribute the adjustment to a moderate problem reflected in appellant’s
current functional history, physical examination or clinical studies. He reported none of these.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition of the A.M.A., Guides. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.0808.6.a
(January 2010).
5

5 U.S.C. § 8107(c)(2).

6

Id. at § 8107(c)(19).

7

A.M.A., Guides 497.

3

The Board must, therefore, find that Dr. Uribe’s impairment rating has no value in
determining appellant’s entitlement to a schedule award.
The Office medical adviser agreed with Dr. Uribe’s rating, but without a current
examination of appellant’s left lower limb for the purpose of evaluating impairment due to the
1992 employment injury, the rating is flowed. He noted, inaccurately, that appellant had a
posterior cruciate ligament reconstruction and medial collateral ligament repair. The surgical
record indicates only the ligament reconstruction was performed.
The Office medical adviser classified the impairment as mild, or one that involves mild
laxity, but he did not identify the source of this finding. Impairment due to a ligament injury is
defined by the presence and extent of any laxity in the joint. A review of appellant’s medical
record shows a gap between 1993, when he was seen in follow-up for his reconstructive surgery
and 2009, when he was seen for left knee tricompartmental degenerative joint disease. His
recent medical record makes no mention of ligamentous laxity.
The Office medical adviser adjusted the default impairment rating of 10 percent for a
moderate pathology shown on clinical studies, but again did not identify the source of this
information. It may be that a clinical study in 1992 or 1993 or more recently shows a moderate
pathology, but the Board is unable to confirm the adjustment without specific information.
Further development of the medical evidence is warranted. The Board will set aside the
Office’s May 11, 2010 decision and remand the case for further development to determine the
extent of any impairment resulting from appellant’s 1992 employment injury. If the
degenerative joint disease currently diagnosed in appellant’s left knee is causally related to the
1992 incident in which he stepped into a hole and ruptured his posterior cruciate ligament, the
evaluation of his impairment must account for it. Following such further development may
become necessary, the Office shall issue an appropriate final decision on his schedule award
claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

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ORDER
IT IS HEREBY ORDERED THAT the May 11, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this opinion of the Board.
Issued: April 7, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Pine Knot, KY, Employer
__________________________________________

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

Docket No. 08-923
Issued: September 4, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 11, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated November 16, 2007 which denied his request
for reconsideration on the grounds that it was untimely filed and failed to establish clear
evidence of error. Because more than one year has elapsed from the last merit decision dated
July 3, 2006 to the filing of this appeal on February 11, 2008, the Board lacks jurisdiction to
review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without conducting a merit review on the grounds that the request was untimely and failed to
demonstrate clear evidence of error.

FACTUAL HISTORY
On April 26, 2006 appellant, then a 34-year-old correctional officer, filed a traumatic
injury claim alleging that he hyperextended his left wrist while assisting another officer in
breaking up a fight between inmates on December 25, 2005. He did not stop work.
By correspondence dated May 30, 2006, the Office requested additional information
concerning appellant’s claim. No additional evidence was received and by decision dated July 3,
2006, the Office denied appellant’s claim on the grounds that there was no medical evidence
rendering a diagnosis that could be connected to the established work-related event. The
decision was sent to appellant’s address of record as stated on the initial traumatic injury claim
form.
In an August 14, 2006 report, Dr. William L. Hardy, an orthopedic surgeon, noted
appellant’s history of a left wrist injury on December 25, 2005, which appellant related occurred
at work when he broke up a fight between two inmates. He explained that appellant initially
believed that he had sprained his wrist but that over the following months his pain worsened until
he had very limited motion in his left wrist. On physical examination, Dr. Hardy found
tenderness to palpation over the mid proximal carpus over the lunate and radial carpal joint on
the dorsal and volar aspects and limited motion with pain. X-rays taken on the date of
examination revealed an apparent scaphoid fracture, partially healed. Dr. Hardy diagnosed left
wrist sprain with fracture of the scaphoid and possible avascular necrosis of the lunate.
In a December 22, 2006 statement to his congressional representative, appellant
explained that he injured his left wrist on December 25, 2005 when he broke up a fight between
two inmates. He explained that the employing establishment’s medical staff took x-rays and told
him that nothing was broken but that his pain continued for four to six months thereafter.
Appellant stated that the employing establishment then advised him to see Dr. Hardy.
In a January 5, 2007 letter, the Office advised appellant’s congressional representative of
the status of the claim and noted that appeal rights were enclosed with the July 3, 2006 decision
and that appellant should pursue those rights if he disagreed with the Office’s decision.
By correspondence dated November 1 and postmarked November 5, 2007, appellant
requested reconsideration. He explained that he submitted an “appeal” to the employing
establishment in April 2007 but that he later discovered that the employing establishment failed
to submit the documentation to the Office. Appellant argued that the employing establishment
told him that it would submit the review request but failed to do so. He provided a copy of a
reconsideration request dated April 12, 2007 which he indicated was given to the employing
establishment. The employing establishment submitted a November 1, 2007 letter from Richard
Kearnely, a safety specialist, indicating that appellant submitted a reconsideration request dated
March 12, 2007. Mr. Kearnely stated that he did not know if this was sent by the previous
person who was handling appellant’s case. He advised that he could not explain what happened
with the paperwork and why the Office did not earlier receive appellant’s reconsideration
request.

2

By decision dated November 16, 2007, the Office denied appellant’s request for
reconsideration without conducting a merit review on the grounds that it was untimely filed and
failed to establish clear evidence of error. It noted that the initial July 3, 2006 denial included
appeal rights that advised appellant to submit his request for reconsideration directly to the
Office.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act1 does not entitle a claimant
to a review of an Office decision as a matter of right.2 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.3 The Office, through its regulations, has imposed limitations on the exercise of
its discretionary authority. One such limitation is that the Office will not review a decision
denying or terminating a benefit unless the application for reconsideration is filed within one
year of the date of that decision.4 The Board has found that the imposition of this one year time
limitation does not constitute an abuse of the discretionary authority granted the Office under
5 U.S.C. § 8128(a).5
The Office’s regulations provide:
“[The Office] will consider an untimely application for reconsideration only if the
application demonstrates clear evidence of error on the part of [the Office] in its
most recent merit decision. The application must establish, on its face, that such
decision was erroneous.”6
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the application for reconsideration to determine
whether there is clear evidence of error pursuant to the untimely request in accordance with
section 10.607(b) of its regulations.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.8 The evidence must be positive, precise and explicit and must

1

5 U.S.C. § 8128(a).

2

Thankamma Mathews, 44 ECAB 765, 658 (1993).

3

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

4

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
5

20 C.F.R. § 10.607(b); Thankamma Mathews, supra note 2 at 769; Jesus D. Sanchez, supra note 3 at 967.

6

20 C.F.R. § 10.607(b).

7

Thankamma Mathews, supra note 2 at 770.

8

Id.

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be manifest on its face that the Office committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.12 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.13
ANALYSIS
The Board finds that the Office properly denied appellant’s request for reconsideration as
untimely. The implementing federal regulation provides that a request for reconsideration must
be filed within one year from the date of the Office decision for which review is sought. As
appellant’s November 1, 2007 reconsideration request was made more than one year following
the Office’s July 3, 2006 decision, the Board finds that appellant’s request was untimely filed.
The Board notes that appellant indicates he submitted a reconsideration request dated April 12,
2006 to the employing establishment which failed to forward the request to the Office.
However, the appeal rights included in the Office’s July 3, 2006 decision clearly instructed
appellant to submit his reconsideration request directly to the Office. The evidence does not
indicate that the Office received an earlier request for reconsideration from appellant. Therefore,
the Board finds that the request was untimely. Consequently, to have his claim reopened
appellant must show clear evidence of error by the Office in its July 3, 2006 decision.
The Office denied appellant’s traumatic injury claim on the grounds that the medical
evidence did not establish that the employment incident caused an injury. After issuance of the
Office’s July 3, 2006 decision, appellant submitted an August 14, 2006 medical report from
Dr. Hardy. However, Dr. Hardy’s report is insufficient to establish evidence or clear error in the
Office’s July 3, 2006 decision. While he relates the history of injury provided by appellant, the
physician did not provide his own specific opinion that the December 25, 2005 employment
incident caused an injury. Furthermore, even if Dr. Hardy’s recounting of appellant’s history
could be construed as support for causal relationship, the Board has held that the term “clear
evidence of error” is intended to represent a difficult standard. For example, evidence such as a
detailed, well-rationalized medical report which if submitted before the denial was issued would
have created a conflict in medical opinion requiring further development is nonetheless not clear

9

Leona N. Travis, 43 ECAB 227, 241 (1991).

10

Jesus D. Sanchez, supra note 3 at 968.

11

Leona N. Travis, supra note 9.

12

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

13

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

4

evidence of error and would not require a review of the case.14 The Board finds that Dr. Hardy’s
August 14, 2006 report is insufficient to raise a substantial question as to the correctness of the
Office’s decision and does not establish clear evidence of error.15 Therefore, the Board finds that
the Office properly denied appellant’s request for reconsideration without conducting a merit
review on the grounds that it was untimely filed and failed to establish clear evidence of error.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without conducting a merit review on the grounds that it was untimely filed and failed to
establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 4, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

See Joseph R. Santos, 57 ECAB 554 (2006), citing Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3(c) (January 2004).
15

Appellant asserted that he submitted evidence to the employing establishment and the employing establishment
failed to forward it to the Office. Although the employer is responsible for submitting any relevant factual or
medical evidence in its possession, the Board notes that it is ultimately appellant’s burden to submit sufficient
evidence to perfect his claim. See 20 C.F.R. §§ 10.115(f), 10.118(a).

5