United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Bend, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1666
Issued: August 25, 2010

Case Submitted on the Record

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

JURISDICTION
On June 15, 2009 appellant filed a timely appeal from August 14 and December 16, 2008
merit decisions denying her claim for compensation benefits.1 Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant was disabled commencing February 15, 2008 causally
related to her March 29, 2005 injury.

1

Appellant’s appeal was postmarked on June 15, 2009, the 181st day after the December 16, 2008 decision. As
the 180th day, however, fell on a Sunday, the Board has jurisdiction over the December 16, 2008 decision. See
Debra McDavid, 57 ECAB 149 (2005); Betsy Limpo, Docket No. 00-1285 (issued April 17, 2001). For decisions of
the Office issued prior to November 19, 2008, a claimant had up to one year to file an appeal to the Board. See
20 C.F.R. § 501.3(d)(2).
2

The record contains an August 13, 2008 merit decision terminating appellant’s authorization for medical
benefits effective August 7, 2008. Appellant did not seek review of this decision and it is not before the Board. 20
C.F.R. § 501.2(c).

FACTUAL HISTORY
On April 14, 2005 appellant, then a 45-year-old carrier, filed a claim alleging that on
March 29, 2005 she sustained an injury to her right elbow. The Office accepted her claim for
right lateral epicondylitis. Appellant worked modified duty beginning April 14, 2005.
In an August 9, 2006 duty status report, Dr. Abid Haq, Board-certified in occupational
medicine, diagnosed ulnar neuropathy on the right. He advised that appellant could resume her
regular full-time employment and required no further medical appointments. On August 21,
2006 Dr. Haq diagnosed epicondylitis and found that appellant could work with restrictions. On
August 25, 2007 he diagnosed right carpal tunnel syndrome and right epicondylitis of the elbow.
Dr. Haq found that she could work within her permanent restrictions.3
In a February 22, 2008 memorandum of telephone call, a health provider advised the
Office that appellant sustained renal failure as a reaction to a Toradol injection, which she
received for her work-related condition. The Office informed the health provider that it had not
authorized the injection and that appellant should provide medical evidence regarding the
Toradol injection and her renal failure.
In a February 13, 2008 report, Dr. Haq related that he treated appellant that day for
complaints of worsening of her right arm pain and increased numbness of the right fourth and
fifth digits. Appellant was taking her dog outside, holding the leash, when the dog jumped
forwards, wrenching her right arm and causing her to fall to the ground onto her right shoulder
and right elbow. Dr. Haq noted that the incident with the dog occurred on February 8, 2008.
Appellant complained of severe pain in the right lateral elbow and forearm and numbness and
tingling of the digits of her right hand. Following that incident, her symptoms were “exacerbated
by computer use, driving, grasping, hand motion, pulling, pushing and reaching….” Dr. Haq
diagnosed right ulnar neuropathy, lateral epicondylitis of the right elbow and right carpal tunnel
syndrome. He opined that appellant experienced a temporary aggravation of her right arm
condition and gave her an injection of 60 milligrams of Toradol. Dr. Haq advised that she could
continue work with restrictions.
The record reflects that appellant was admitted to the hospital on February 19, 2008 with
acute renal failure. She provided a history of receiving a shot of Toradol on February 13, 2008
for pain due to her chronic right ulnar neuropathy and lateral epicondylitis. Dr. Kumiko Y.
Nomoto, Board-certified in family practice, evaluated appellant and diagnosed acute renal failure
most likely a manifestation of an acute interstitial nephritis resulting from the shot of ketorolac
(Toradol) that she received six days ago. In a February 20, 2008 discharge summary,
Dr. Nomoto listed acute renal failure and interstitial nephritis “presumed secondary to Toradol.”
On March 27, 2008 appellant filed claims for wage-loss compensation commencing
February 15, 2008.
On April 4, 2008 the Office advised appellant that Dr. Haq treated her with a Toradol
injection on February 13, 2008 after she sustained increased arm symptoms on February 8, 2008
3

By decision dated January 24, 2008, the Office denied appellant’s claim for a schedule award. It determined
that the opinion of Dr. Richard Hall, a Board-certified orthopedic surgeon and Office referral physician, established
that she had no permanent impairment due to her accepted work injury.

2

when her dog jumped forward and wrenched her right arm. He diagnosed a temporary
aggravation of her right arm condition. It requested that appellant submit a rationalized medical
report addressing her condition following the incident with her pet and the need for the Toradol
injection, whether the injection was for her accepted right lateral epicondylitis and how her
hospitalization and disability was due to the Toradol injection.
In a note dated March 14, 2008, Dr. Ruth Emerson, Board-certified in family practice,
found that appellant was disabled from work beginning February 15, 2008, but she could return
to regular duty or reevaluation on March 24, 2008. On March 27, 2008 Dr. Nomoto noted that
appellant was disabled from March 25 to April 7, 2008.
On April 22, 2008 Dr. Haq found that appellant was at maximum medical improvement
for her right upper extremity elbow lateral epicondylitis, carpal tunnel syndrome and ulnar
neuropathy. He stated:
“[Appellant] had been treated for aggravation of her right arm condition on
February 13, 2008. She states that she recalled falling to the ground onto her right
shoulder and right elbow on the evening of February 8, 2008 when her dog
wrenched her right arm. [Appellant] states that subsequent to that event the right
arm condition worsened due to computer use, driving, grasping, hand motion,
pulling, pushing and reaching, lifting and moving seats at work.”
Dr. Haq treated appellant with Toradol and noted that she subsequently developed nephritis
which “may have been due to the medication.”
On April 25, 2008 Dr. Haq attributed the worsening of appellant’s right elbow condition
to both the February 8, 2008 incident while walking her dog and to her work duties performed
after the fall. He asserted that the diagnoses of acute renal failure and acute interstitial nephritis
was “presumed to be secondary to ketorolac (Toradol) to treat the severe exacerbation of
[appellant’s] right lateral epicondylitis, on a more probable-than-not basis, even though she had
been given the same injection in the past with no adverse effects. This was the opinion of her
attending [physicians] in the hospital.” Dr. Haq noted that Dr. Nomoto found appellant disabled
for work when she was discharged from the hospital on February 20, 2008.
In a June 3, 2008 decision, the Office denied appellant’s claim for wage-loss
compensation from February 15 through April 11, 2008. It found that Dr. Haq’s April 25, 2008
report was not sufficient to establish that the Toradol injection was for treatment of her accepted
work injury.
On July 21, 2008 appellant requested reconsideration of the June 3, 2008 decision. On
July 26, 2008 Porter W. DeVere, the postmaster, related that for one week prior to and including
February 13, 2008 appellant moved “jump seats” from one long life vehicle to another.
In a July 29, 2008 letter, Dr. Haq stated:
“It is my medical opinion that [appellant’s] right elbow condition was temporarily
aggravated by the repetitive computer use, activities of driving, grasping, hand
motion, pulling, pushing and reaching, lifting and moving seats at work, using her
dominant right hand and arm.
3

“It is true that the right elbow epicondylitis resolved and [appellant] was at MMI
[maximum medical improvement] on August 9, 2006. It is also true that she
sustained an injury to the right elbow when walking her dog on February 8, 2008,
which was nonindustrial. [Appellant] had been pain-free and working since
August 9, 2006.
“However, it is my medical opinion that the repetitive work activities caused a
flare-up of the right elbow condition. I believe that had [appellant] not been
doing her work activities, her right elbow condition would not have worsen[ed] to
the point to where she needed strong medication since the Naproxen she was
taking was not helping. Because she was in such severe pain, I offered her an
injection of intramuscular ketorolac (Toradol) to relieve her right arm pain, so that
she could resume work. [Appellant] was offered this strong anti-inflammatory
because she had responded well to it in the past, and there was no history of any
adverse reaction to NSAIDS [nonsteroidal anti-inflammatory drugs] in the past.
“Unfortunately, [appellant] developed a reaction to the Toradol injection
manifested as acute interstitial nephritis and acute renal failure. While it is true
that she had no prior history of allergic reaction to this medication, (the first time
she was given it was May 30, 2007, and the second time was on February 13,
2008) she probably became sensitized to it on the first administration, and
developed an acute reaction on her second exposure.
“I do wish to stress that [appellant] was given the medication to treat her right arm
pain which was temporarily aggravated by the repetitive work activity. The
subsequent reaction should also be indirectly regarded as work related, since she
was given it to treat the right elbow pain.”
By decision dated August 13, 2008, the Office terminated appellant’s compensation and
medical benefits effective August 7, 2008.4 It found that an impartial specialist’s report
constituted the weight of the evidence and established that her accepted condition had resolved.
In a decision dated August 14, 2008, the Office rescinded and reissued its June 3, 2008
decision denying appellant’s claim for wage-loss compensation from February 15 through
March 28, 2008.
On September 11, 2008 appellant requested a review of the written record on the
August 14, 2008 decision. In a letter dated November 22, 2008, she related that she experienced
increased arm pain in February 2008 “after moving jump seats for at least a week. This was
[not] a new injury it is a continuation of the same.”
In a December 16, 2008 decision, an Office hearing representative affirmed the
August 14, 2008 denial of wage-loss compensation. He found that appellant received medical
treatment on February 13, 2008 following an intervening, nonindustrial injury on
February 8, 2008. Therefore, the adverse effect from such treatment was not compensable.
4

The Office initially issued the decision on August 8, 2008; however, on August 13, 2008 it issued a corrected
copy of the decision.

4

Dr. Haq attributed the temporary aggravation of her right arm condition to repetitive work duties,
which would constitute a new occupational disease.
On appeal, appellant contends that she experienced frequent right arm pain after her
injury in 2005. She moved jump seats and performed her regular work duties and her
prescriptions were not working; therefore, she sought treatment on February 13, 2008. Appellant
asserted that walking her dog was not the only cause of her condition.
LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act5 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.6 Whether a particular injury causes an employee disability for employment
is a medical issue which must be resolved by probative medical evidence.7 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.8 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.9
It is well established that when an employee returns to light-duty work, she has the
burden to establish a recurrence of disability and that she cannot perform such light duty. The
employee must show a change in the nature of the accepted condition or a change in the lightduty job requirements.10
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment unless it is the result of an
independent intervening cause.11
ANALYSIS
The Office accepted that appellant sustained right lateral epicondylitis due to a March 29,
2005 work injury.12 Appellant worked limited duty full time beginning April 14, 2005. As of
5

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

6

Paul E. Thams, 56 ECAB 503 (2005).

7

Id.

8

Id.

9

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

10

Terry R. Hedman, 38 ECAB 222 (1986).

11

See S.M., 58 ECAB 166 (2006); Carlos A. Marrero, 50 ECAB 117 (1998).

12

The record reflects that appellant is right-hand dominant.

5

August 9, 2006, her attending physician advised that she could continue work under her physical
restrictions but she required no further medical appointments. In a closing report, Dr. Haq noted
that appellant’s magnetic resonance imaging scan showed a normal right elbow and nerve
conduction studies were consistent with a moderate right median nerve entrapment at the wrist.
He diagnosed lateral epicondylitis of the right elbow, resolved and right carpal tunnel syndrome
of the right that was asymptomatic. Dr. Haq advised that appellant’s right ulnar neuropathy was
symptomatic only when positional.13
When seen by Dr. Haq on February 13, 2008, he noted that appellant had last worked that
day and that she was at maximum medical improvement for the accepted conditions. Appellant
presented to his office with a worsening of right arm pain with numbness of the right fourth and
fifth digits. Dr. Haq obtained a history that, while walking her dog holding a leash, the dog
suddenly jumped forward “wrenching her right arm and causing her to fall to the ground onto her
right shoulder and right elbow. This occurred on the evening of February 8, 2008.” He provided
her with the Toradol injection and advised that she continue to work with restrictions.
Appellant was subsequently hospitalized on February 19, 2008 with acute renal failure.
She claims disability from February 15 to March 15, 2008 causally related to her March 29, 2005
employment injury. The Board finds that appellant’s need for medical treatment on February 13,
2008 was due to an independent intervening cause when she fell on the evening of February 8,
2008 after her dog jumped on a leash.
The evidence of record does not establish that appellant’s need for medical treatment on
February 13, 2008 was due to a natural progression or worsening of the accepted right elbow
epicondylitis condition. There is no medical evidence documenting treatment by Dr. Haq for this
condition from the late summer of 2006. On February 13, 2008 the triggering activity identified
by the attending physician was appellant’s dog jumping forward while on a leash, causing her to
fall to the ground on her right shoulder and elbow. It was only after the occurrence of this
incident on February 8, 2008 that appellant sought medical treatment. In Anthony S. Wax,14 the
employee had an accepted low back condition related to lifting heavy mail. On January 13,
1951, after completing his work, he drove to an apartment building he owned to examine the fuel
supply. He moved ash barrels weighing between 100 to 150 pounds and sustained severe pain in
his low back. The Board found that the employee failed to establish a chain of causation for his
disability back to his accepted injury. It found that his disability following January 13, 1951 was
not a direct and natural result of his accepted low back condition but was due to an independent
intervening cause. In Howard S. Wiley,15 the employee slipped on steps leading from his house
while on his way to work. The Board noted that he had an accepted claim for a back condition
sustained when lifting a five-gallon can of paint. It found that appellant’s injury on the steps of
his house was independent of the earlier work injury. In John R. Knox,16 the employee had an
accepted left knee injury sustained when he struck a ridge while climbing from an enclosed
13

On September 13, 2006 Dr. Haq provided work restrictions continuing appellant’s modified duties. He saw her
again on October 11, 2006 after she cased mail for five hours the prior day.
14

7 ECAB 330 (1954).

15

7 ECAB 126 (1954).

16

42 ECAB 193 (1990).

6

space. Two years later, he alleged a recurrence of disability after making a sharp turn on
July 2, 1988. The Board noted that at the time of the alleged recurrence, the employee was
playing basketball when he sustained a dislocation of the left patella. It found that his disability
was not the result of the natural consequence or progression of his accepted condition but due to
an independent intervening cause. The facts presented in this case are similar, the incident
giving rise to appellant’s need for medical treatment on February 13, 2008 was the February 8,
2008 event when her dog jumped forward causing her to fall. This was an independent
intervening cause of her need for medical treatment and the resulting Toradol injection for which
she was subsequently hospitalized on February 19, 2008.
On appeal, appellant contends that her need for treatment on February 13, 2008 was
related to her work duties, including moving jump seats that week. The Board finds that the
medical evidence is insufficient to establish that appellant was disabled from February 15 to
March 15, 2008 due to her accepted work injury. On February 13, 2008 Dr. Haq noted that, after
the February 8, 2008 incident with her dog, appellant found that activities such as using the
computer, driving, grasping, pushing and pulling increased her right arm pain.
On April 22, 2008 Dr. Haq reiterated that appellant had aggravated her right arm
condition when she fell on her right shoulder and elbow on February 8, 2008 after her dog pulled
her down. After the fall she experienced increased arm pain from “computer use, driving,
grasping, hand motion, pulling, pushing and reaching, lifting and moving seats at work.” On
April 25, 2008 Dr. Haq noted that the incident involving appellant’s dog was not employment
related but that subsequent to the fall she aggravated her right arm condition further by
performing her daily work activities. Dr. Haq attributed appellant’s acute renal failure and
interstitial nephritis to, more probably than not, the injection of Toradol used to treat the
aggravation of her right lateral epicondylitis. He noted that her physicians found that she was
unable to work after she was released from the hospital on February 20, 2008.
On July 29, 2008 Dr. Haq stated that appellant’s right elbow epicondylitis resolved by
August 9, 2006 and that she “had been pain-free and working since August 9, 2006.” He related
that she sustained an injury to her right arm on February 8, 2008 while walking her dog. Dr. Haq
noted, however, that repetitive work activities had aggravated appellant’s condition and resulted
in the injection of Toradol. He stated that appellant was “given the medication to treat her right
arm pain which was temporarily aggravated by the repetitive work activity. The subsequent
reaction should also be indirectly regarded as work related, since she was given it to treat the
right elbow pain.” Dr. Haq attributed her condition to an intervening injury on February 8, 2008
and repetitive work factors performed after her accepted condition resolved on August 9, 2006
rather than the accepted March 29, 2005 employment injury. Appellant, consequently, has failed
to submit rationalized medical evidence showing that she was disabled from February 15 through
March 28, 2008 due to her March 29, 2005 work injury. The Office’s implementing federal
regulations define a recurrence of disability as the inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition which resulted from a
previous injury without an intervening injury or new exposure to the work environment.17 The
reports of Dr. Haq attribute appellant’s condition and the need for treatment to the intervening

17

20 C.F.R. § 10.5(x).

7

injury of February 8, 2008 or her new workplace exposures after 2006. By definition, this does
not constitute a recurrence of disability due to the accepted March 29, 2005 injury.18
CONCLUSION
The Board finds that appellant has not established that her disability commencing
February 15, 2008 was causally related to her March 29, 2005 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 16 and August 14, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 25, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

18

This decision does not preclude appellant from pursuing an occupational disease claim for new exposures while
performing modified duty after 2006.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Knoxville, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1509
Issued: November 2, 2007

Case Submitted on the Record

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

JURISDICTION
On May 7, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated March 23, 2007 which affirmed the denial of his
claim. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has established that he sustained an injury to his right knee
in the performance of duty on July 30, 2004.
FACTUAL HISTORY
Appellant, a 45-year-old processing clerk, filed a Form CA-1 claim for benefits on
July 30, 2004 alleging that he experienced pain in his left knee1 while lifting trays of mail.
1

Appellant subsequently asserted that he had actually injured his right knee and had erred by initially stating on
the claim form that he had injured his left knee. This correction was not challenged by the employing establishment
or the Office.

By decision dated September 14, 2004, the Office denied the claim finding that appellant
failed to submit medical evidence in support of his claim. It noted that he failed to submit
medical evidence providing a diagnosis resulting from the July 30, 2004 work incident.
On September 29, 2004 appellant requested an oral hearing which was held on
April 20, 2005. In an August 18, 2004 report, Dr. Leonard F. Bellingrath, a specialist in family
practice, noted appellant’s complaints of worsening pain in the mornings for the previous three
weeks. He advised that he had low back pain in addition to popping in the right knee.
Dr. Bellingrath stated that appellant also experienced occasional catching in his right knee. He
diagnosed lumbar strain, possible knee strain and cartilage tear.
In a report dated November 5, 2004, Dr. Thomas I. Anderson, a Board-certified family
practitioner, stated that appellant noticed a popping in his right knee and experienced difficulty
walking down steps. Dr. Anderson noted a very mild effusion in appellant’s right knee as
compared to the left knee. He stated that x-rays taken of the knee showed no intra-articular
foreign bodies and no appreciable degree of osteoarthritic change. Dr. Anderson scheduled
appellant for a magnetic resonance imaging (MRI) scan of his left knee.
In a November 16, 2004 report, Dr. Anderson noted that the MRI scan results showed an
extensive complex tear of the medial meniscus, mild chondromalacia and a small meniscal cyst
posteriorly, with small knee joint effusion.
By decision dated July 18, 2005, an Office hearing representative affirmed the
September 14, 2004 decision.
Appellant requested reconsideration.

In a September 21, 2005 report, Dr. Anderson

stated:
“[Appellant] suddenly, while bending and flexing his knee to pick something up
felt a pop in his right knee. It became progressively sore and he was using his
knee excessively over what he ordinarily does because of his back strain. This
happened on July 30[, 2004] at 6:30 p.m. while he was at work. [Appellant] filled
out an accident report at that time after speaking to his supervisor, but filled out
the accident form indicating that it was the left knee and not the right by mistake.
“[Appellant] went back to work on Monday the following week thinking that
things would gradually get better.... However his knee on the right side kept
popping and he could not only hear it, but he could also feel it and the pain more
or less stayed in the knee, but he was able to function with it.
“On October 31[, 2004] when he was [bending] to pick something up his knee
popped and it was suddenly much worse than it was previously. [Appellant] came
to see me on November 5, 2004 and x-rays were taken of the right knee and also
we scheduled [her] for an MRI [scan]. Unfortunately the radiologist originally
read this MRI [scan] and labeled it as his left knee, but in fact corrected the report
later that day and stated that the MRI [scan] was of his right knee. The report did

2

show that he had an extensive complex tear involving most of the medial
meniscus of that right knee. [Appellant] was subsequently referred [for] surgery
and [he] is now free of knee pain, free of other symptoms regarding his back and
his [k]nee and is doing quite well.
“I believe that [appellant] has sustained a very legitimate injury to his right knee
on July 30, 2004 as he describes and this was while he was work[ing] at the
[employing establishment].”
By decision dated June 12, 2006, the Office denied modification of the July 18, 2005
decision.
By letter dated September 15, 2006, appellant requested reconsideration.
By decision dated September 27, 2006, the Office denied appellant’s application for
review on the grounds that it neither raised substantive legal questions nor included new and
relevant evidence sufficient to require the Office to review its prior decision.
By letter dated October 23, 2006, appellant requested reconsideration. He submitted an
August 29, 2006 report from Dr. Anderson, who stated:
“Please see the history and examination that I reviewed on [appellant] on
September 21, 2005. I believe in that history and summation that [his] knee
injury occurred at his place of employment on July 30, 2004. [Appellant’s] injury
was aggravated on October 31, 2004 and I believe the injuries are directly related,
should be [compensable].”
By decision dated November 14, 2006, the Office denied appellant’s application for
review on the grounds that it neither raised substantive legal questions nor included new and
relevant evidence sufficient to require the Office to review its prior decision.
By letter dated December 20, 2006, appellant requested reconsideration.
By decision dated March 23, 2007, the Office denied modification of its prior decisions.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.4
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.5 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.6 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
The Office accepted that appellant experienced left knee pain while lifting mail trays on
July 30, 2004. The question of whether an employment incident caused a personal injury can
only be established by probative medical evidence.10 Appellant has not submitted rationalized,
probative medical evidence to establish that the July 30, 2004 employment incident caused a
personal injury.

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

7

Id.

8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

10

John J. Carlone, supra note 5.

4

Drs. Bellingrath and Anderson stated findings on examination and indicated that
appellant had a right knee strain and torn medial meniscus. Their reports, however, did not relate
the diagnoses to the July 30, 2004 incident at work. The weight of medical opinion is
determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated
conclusions.11 Dr. Bellingrath advised in an August 18, 2004 report that appellant had
complaints of worsening pain, popping and catching in his right knee. He diagnosed lumbar
strain and possible knee strain and cartilage tear. Dr. Anderson opined on September 21, 2005
and October 23, 2006 that appellant had a torn right medial meniscus as indicated by MRI scan.
He stated that this was caused by an over reliance on appellant’s knee due to a previously
strained lower back incident. Although the physicians presented diagnoses of appellant’s left
knee condition, they did not adequately explain how it was causally related to the July 30, 2004
work incident. The medical reports of record did not explain how medically appellant would
have sustained a knee injury because he was lifting a tray of mail. There is insufficient
rationalized evidence in the record that appellant’s right knee injury was work related.
Therefore, as he failed to provide a medical report from a physician that explains how the work
incident of July 30, 2004 caused or contributed to the claimed right knee injury, appellant has not
met his burden of proof.
The Office advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Appellant did not provide a medical opinion which
describes or explains the medical process through which the July 30, 2004 work accident would
have caused the claimed injury. Accordingly, he did not establish that he sustained a right knee
injury in the performance of duty. The Office properly denied appellant’s claim for
compensation.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a right knee injury
in the performance of duty.

11

See Anna C. Leanza, 48 ECAB 115 (1996).

5

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2007, November 14, September 27
and June 12, 2006 decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: November 2, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Syosset, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1936
Issued: March 19, 2009

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 July 3, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 15, 2008 regarding her schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than a 33 percent permanent impairment to her
right upper extremity.
FACTUAL HISTORY
The Office accepted that appellant sustained a right elbow fracture and right arm strain in
the performance of duty on July 24, 1981 when she was opening a vehicle window. Appellant
worked intermittently and retired from federal employment in 1988.
In a report dated May 6, 1997, Dr. Ronald Potash, an orthopedic surgeon, provided a
history and results on examination. He opined that appellant had a 51 percent permanent

impairment to her right arm, based on motor and grip strength deficits, as well as loss of range of
motion. By report dated July 22, 1998, an Office medical adviser reviewed the medical evidence
and opined that appellant had a 33 percent right arm permanent impairment.
The Office found that a conflict in the medical evidence arose under 5 U.S.C. § 8123(a)
and appellant was referred to Dr. Lewis Zemsky, a Board-certified orthopedic surgeon,
who submitted a September 3, 1998 report finding that appellant had three to five percent right
arm impairment. It sought clarification from Dr. Zemsky regarding the method of calculation,
but no response was received.
By decision dated December 23, 1999, the Office issued a schedule award for a 33
percent right arm permanent impairment. The period of the award was April 9, 1997 to
March 30, 1999. An Office hearing representative set aside the schedule award by decision
dated January 10, 2001. The hearing representative noted that the conflict remained unresolved
and the case was remanded for further development.
Dr. Robert Dennis, a Board-certified orthopedic surgeon, was selected as a referee
physician. In a report dated May 7, 2001, he provided a history and results on examination.
Dr. Dennis found that appellant had eight percent right arm impairment, stating he utilized
Tables 16-2 through 16-15 of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed., hereinafter referred to as the A.M.A., Guides).
In a decision dated May 22, 2001, the Office determined that appellant did not have more
than 33 percent right arm impairment. This decision was set aside by an Office hearing
representative in a February 25, 2002 decision. The hearing representative found that Dr. Dennis
did not fully explain how the tables in the A.M.A., Guides were used and the Office was directed
to secure a supplemental report.
By report dated May 1, 2002, Dr. Dennis reviewed his findings and described the motor
deficits he had found. He noted some bicep and tricep weakness, with minimal loss of grip
strength. Dr. Dennis identified the affected nerves and further stated, “The unit losses of the
radial, musculocutaneous, median and ulnar nerves, are individually very small.” He identified
Tables 16-15 and Table 16-11, finding that for the median nerve (below midforearm) a two
percent impairment based on grip strength and wrist flexion, three percent for the ulnar nerve
(above midforearm), one percent for the musculocutaneous nerve for biceps weakness, three
percent for the radial nerve (upper arm) based on wrist and triceps weakness and one percent for
the anterior interosseous branch of the median nerve based on index flexion. Dr. Dennis
concluded that appellant had a 10 percent right arm permanent impairment. He also noted the
A.M.A., Guides state when motor/sensory impairments result strictly from a peripheral nerve
lesion, the range of motion impairments are not applied in addition to the motor/sensory
impairments. The referee physician further noted that he did not find any sensory deficit.
In a report dated May 17, 2002, a second Office medical adviser opined that Dr. Dennis
provided a good report and that right arm impairment was 10 percent. By decision dated
May 20, 2002, the Office found that appellant did not have more than 33 percent right arm
impairment.

2

Appellant requested a hearing before an Office hearing representative, which was held on
December 1, 2004. Following the hearing, she submitted a December 13, 2004 report from
Dr. David Weiss, an osteopath, who stated that he was confused as to how Dr. Dennis graded the
impairment. Dr. Weiss indicated the minimum grade for the identified nerves was 25 percent of
the maximum and this would result in 30 percent right arm impairment.
In a decision dated February 2, 2005, the hearing representative found that appellant had
not established more than a 33 percent permanent impairment to the right arm. Appellant
requested an appeal with the Board, which was docketed as No. 05-1336. By order dated
November 7, 2005, the Board remanded the case for proper assemblage of the case record and an
appropriate decision.
In a decision dated April 15, 2008, the Office reissued the February 2, 2005 decision
finding no more than a 33 percent right arm permanent impairment.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.1 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.2
It is well established that when a case is referred to a referee physician for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.3
ANALYSIS
The Office found a conflict in the evidence regarding the percentage of permanent
impairment in the right arm and appellant was referred to Dr. Dennis as a referee physician.4 In
Dr. Dennis’ May 7, 2001 report, he provided results on examination, but he did not clearly
explain how he calculated the right arm impairment under the A.M.A., Guides.

1

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid, additional members of the body
are found at 20 C.F.R. § 10.404(a).
2

A. George Lampo, 45 ECAB 441 (1994).

3

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

4

5 U.S.C. § 8123(a) provides that if there is a disagreement between a physician making the examination for the
United States and the employee’s physician, a third physician shall be appointed to make an examination. The
Office’s regulations state that this is called a referee examination. 20 C.F.R. § 10.321 (2008). The disagreement in
this case was between Dr. Potash and the Office medical adviser.

3

The May 1, 2002 report, however, does identify the tables used and explains the amount
of the impairment for each of the identified nerves under Table 16-15. The maximum
impairment for motor deficit in median nerve (below midforearm) is 10 percent, for the ulnar
nerve (above midforearm) is 46 percent, for the musculocutaneous nerve 25 percent, upper arm
radial nerve 42 percent and anterior interosseous branch of the median nerve 15 percent.5
Dr. Dennis clearly identified the affected nerves and the corresponding weakness. While he did
not provide the specific grade under Table 16-11, the grade can be determined by the final
impairment rating for each nerve. Table 16-11 provides for a grade of 1 to 25 percent of the
maximum for “complete active range of motion against gravity with some resistance.”6
Dr. Weiss argued that a 25 percent grade is the minimum for Table 16-11, but the table clearly
provides for a range from 1 to 25. A physician must explain the impairment rating,7 and
Dr. Dennis discussed his motor deficit findings and the grading of the nerve impairments is
consistent with his findings.8
The Board finds that Dr. Dennis provided a rationalized medical opinion on the issue
presented. Dr. Dennis discussed his findings regarding the permanent impairment and found that
under the A.M.A., Guides appellant had a 10 percent right arm permanent impairment. As noted
above, a rationalized opinion from a referee physician is entitled to special weight. The report of
Dr. Dennis represents the weight of the evidence in this case and resolved the conflict in the
medical evidence.
CONCLUSION
The evidence does not establish more than a 33 percent right arm impairment.

5

A.M.A., Guides 492, Table 16-15.

6

Id. 484, Table 16-11.

7

See Tara L. Hein, 56 EAB 431 (2005).

8

Moreover, Dr. Weiss indicated that a 25 percent grade for each of the identified nerves resulted in a 30 percent
arm impairment, which is less than the 33 percent previously awarded.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 15, 2008 is affirmed.
Issued: March 19, 2009
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carol Stream, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 20-0671
Issued: November 30, 2020

Case Submitted on the Record

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

On February 5, 2020 appellant filed a timely appeal from a January 22, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) under File No. xxxxxx879.1
The Clerk of the Appellate Boards docketed the appeal as No. 20-0671.
On June 10, 2015 appellant, then a 58-year-old general clerk, filed an occupational disease
claim (Form CA-2) alleging that on or before March 10, 2014, she sustained a prolapsed bladder
due to factors of her federal employment, specifically lifting heavy trays of mail into a four-tier
sorting machine five days a week. In a June 30, 2015 statement, appellant contended that she
sustained a uterine prolapse on September 17, 2011. She underwent surgical repair in
December 2011.
In a June 15, 2015 letter, the employing establishment noted that appellant had claimed a
September 17, 2011 uterine prolapse under OWCP File No. xxxxxx633, denied by OWCP on
April 19, 2012.
Prior to appellant’s June 10, 2015 occupational disease claim, appellant also filed two
previous claims for uterine prolapse. Under OWCP File No. xxxxxx496, she claimed a uterine
1
Appellant timely requested oral argument before the Board. See 20 C.F.R. § 501.5(b). In light of the Board’s
disposition of this appeal, the oral argument request is denied.

prolapse and pelvic relaxation syndrome with bladder leakage due to repetitive heavy lifting on or
before May 1, 2009. Under OWCP File No. xxxxxx787, appellant claimed a uterine prolapse
caused by repetitive heavy lifting on or before February 1, 2011. Under OWCP File No.
xxxxxx633, she claimed a uterine prolapse caused by heavy lifting while in the performance of
duty on September 17, 2011. OWCP denied these claims.
In a July 15, 2015 report, Dr. Shamim Y. Patel, a Board-certified obstetrician and
gynecologist, provided a status of appellant’s condition. She indicated that appellant presented
with uterine and bladder prolapse, and on December 21, 2011, underwent a robotic-assisted total
laparoscopic hysterectomy and uterosacral suspension. Dr. Patel opined that lifting 70-pound trays
for several years “can definitely contribute significantly” to prolapse of the uterus. She further
opined that postoperatively, appellant “did quite well and was fully healed.” Dr. Patel indicated
that appellant returned to work performing the same duties of lifting 70-pound trays, as much as
300 trays per night, which she opined “can again contribute to bladder prolapse.” Dr. Patel
reported that appellant returned to her office with a new onset of vaginal wall prolapse, and due to
the severity of the prolapse, she referred her for a “uro gyn” consultation. She noted that another
surgery was to be scheduled.
In an August 22, 2015 statement, appellant asserted that repetitive heavy lifting at work
during the previous several years had caused bladder and uterine prolapse.
By decision dated February 4, 2016, OWCP denied appellant’s claim. It accepted that the
March 10, 2014 employment incident occurred as alleged, however, it found that she had not
established a diagnosed medical condition causally related to the accepted employment incident,
thus the requirements had not been met for establishing an injury as defined by FECA.
In a June 22, 2016 letter, appellant requested that OWCP resend the February 4, 2016
decision. OWCP took no action on appellant’s request.
On a request form dated December 4, 2019, and postmarked December 5, 2019, appellant
requested a review of the written record by a representative of OWCP’s Branch of Hearings and
Review and submitted evidence.
By decision dated January 22, 2020, OWCP’s Branch of Hearings and Review denied
appellant’s hearing request. It found that the request was untimely filed as it was postmarked
December 5, 2019, more than 30 days after its February 4, 2016 merit decision. After exercising
its discretion, OWCP further found that the issue in the case could equally well be addressed
through the reconsideration process.
The Board, having duly considered the matter, finds that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined where
correct adjudication depends on cross-referencing between files and where two or more injuries
occur to the same part of the body.2 There is extensive medical evidence in OWCP File Nos.
xxxxxx496, xxxxxx633, and xxxxxx787 regarding the claimed conditions. For a full and fair

2
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

2

adjudication, the claims in OWCP File Nos. xxxxxx496, xxxxxx633, xxxxxx787, and xxxxxx879
must be administratively combined.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on cross-referencing
between files.3 This will allow OWCP to consider all relevant claim files in developing this
schedule award claim.4
Accordingly, the Board will remand the case to OWCP to administratively combine the
case records for File Nos. xxxxxx496, xxxxxx633, xxxxxx787, and xxxxxx879. Following this
and such development as deemed necessary, OWCP shall issue a de novo merit decision on
appellant’s claim.
IT IS HEREBY ORDERED THAT the January 22, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: November 30, 2020
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

3

Id. at Chapter 2.400.8(c)(1); W.W., Docket No. 19-0884 (issued June 16, 2020); L.P., Docket Nos. 18-1558,
18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867, 17-1868 (issued April 18, 2018); W.S., Docket
No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576 (issued March 9, 2015).
4

Id.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Humble, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-0166
Issued: March 8, 2022

Case Submitted on the Record

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

On November 12, 2020 appellant filed an appeal from a May 8, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of Appellate Boards docketed
the appeal as Docket No. 21-0166.
The Board, having duly considered the matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act. 1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s authority
is limited to appeals, which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180 th day following the most recent OWCP decision, dated May 8, 2020, was
November 4, 2020. As appellant did not file an appeal with the Board until November 12, 2020,
more than 180 days after the May 8, 2020 decision, the Board finds that the appeal docketed as
No. 21-0166 is untimely filed. The Board is without jurisdiction to review the appeal. Appellant
has not offered a reason to explain her failure to timely file an appeal with supporting
1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

2

Id. at § 501.3(e).

documentation sufficient to establish compelling circumstances. Because there is no final adverse
decision issued by OWCP within 180 days of the filing of this appeal over which the Board may
properly exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-0166 must
be dismissed. 3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0166 is dismissed.
Issued: March 8, 2022
Washington, DC

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

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

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0149
Issued: June 21, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 11, 2020 appellant, through counsel, filed a timely appeal from a
September 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.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 21, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish that the acceptance
of his claim should be expanded to include additional left knee torn meniscus and arthritis
conditions as a consequence of his accepted April 16, 2013 employment injury.
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 as
follows.
On April 17, 2013 appellant, then a 52-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 16, 2013 he injured his right knee and foot when he fell on a
collapsed porch while in the performance of duty. He stopped work on that day. OWCP accepted
appellant’s claim for right foot contusion, right knee and foot sprain, right knee and foot edema,
bilateral buttock contusion, and lumbosacral sprain and subsequently expanded acceptance of his
claim to include aggravation of lumbosacral spondylosis. It paid appellant wage-loss
compensation on the supplemental rolls beginning June 1, 2013 and placed him on the periodic
rolls, effective May 4, 2014.5
On July 8, 2015 OWCP expanded acceptance of appellant’s claim to include acceleration
of underlying right knee medical compartment arthritis.
On August 28, 2017 appellant returned to full-duty work.
Appellant continued to receive medical treatment. In a September 30, 2017 report,
Dr. Florian Miranzadeh, an osteopath Board-certified in family medicine, indicated that, while
undergoing physical therapy treatment on May 10, 2017 for a work-related right knee injury,
appellant noticed left knee pain. He provided left knee examination findings and noted that a left
knee magnetic resonance imaging (MRI) scan demonstrated a tear of the posterior horn of the
medial meniscus with adjacent small para meniscal cyst. Dr. Miranzadeh opined that appellant
sustained a consequential left knee injury as a result of his work-related right knee injury. He
explained that appellant had to walk for a significant amount of time with a cane due to his accepted
right knee injuries, which caused unbalanced pressure on his left knee.
In an October 13, 2017 report, Dr. Todd Fellars, a Board-certified orthopedic surgeon
serving as an OWCP district medical adviser (DMA), reviewed appellant’s history of injury and
noted his disagreement with Dr. Miranzadeh’s opinion that appellant sustained a consequential left
knee injury as it was inconsistent with current medical thought.
On January 10, 2018 OWCP determined that a conflict in the medical opinion evidence
existed between Dr. Miranzadeh and the DMA, regarding whether appellant sustained a left knee
4

Docket No. 19-0397 (issued August 7, 2019).

5
Appellant underwent several OWCP-approved surgeries, including lumbar surgery on February 15, 2014, right
knee arthroscopic partial medial and partial lateral surgery on May 17, 2014, and total right knee arthroplasty on
March 1, 2016.

2

torn meniscus and arthritis as a consequence of his April 16, 2013 employment injury. It referred
appellant for an impartial medical examination in order to resolve the conflict of medical opinion.
In a February 5, 2018 report, Dr. Hythem P. Shadid, a Board-certified orthopedic surgeon serving
as an impartial medical examiner (IME), noted his review of the statement of accepted facts
(SOAF) and appellant’s medical records. He listed appellant’s accepted conditions and recounted
appellant’s current complaints of left medial knee pain with strenuous activity and pivoting. In
response to OWCP’s questions, Dr. Shadid opined that there was no scientific evidence to support
the conclusion that appellant’s current degenerative left knee condition, including the degenerative
medial meniscus tear, was consequential to the accepted April 16, 2013 employment injury.
In a decision dated March 9, 2018, OWCP denied expansion of the acceptance of
appellant’s claim to include a consequential left knee injury. It found that the special weight of
the medical evidence rested with the February 5, 2018 report of Dr. Shadid, the IME, who opined
that the medical evidence of record was insufficient to establish that the additional left knee
conditions were causally related to his April 16, 2013 employment injury.
On March 16, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. By decision dated October 2, 2018,
OWCP’s hearing representative affirmed the March 9, 2018 decision.
Appellant, through counsel, filed an appeal before the Board.
In an August 7, 2019 decision, the Board set aside the October 2, 2018 decision. It found
that an unresolved conflict in medical opinion evidence existed between Dr. Shadid, OWCP’s
referral physician, and Dr. Miranzadeh, appellant’s treating physician, regarding whether appellant
sustained a consequential left knee condition due to his accepted April 16, 2013 right knee injury
and remanded the case for referral to an IME pursuant to 5 U.S.C. § 8123(a).6
Appellant submitted additional medical evidence following the October 2, 2018 OWCP
decision. In reports dated November 19, 2018 through June 26, 2019, Dr. Jeffrey S. Meisles, a
Board-certified orthopedic surgeon, recounted appellant’s complaints of right knee and hip pain.
He provided physical examination findings and assessed bilateral hip arthritis and right hip
trochanteric bursitis.
In a July 31, 2019 letter, counsel requested that the acceptance of appellant’s claim be
expanded to include bilateral hip osteoarthritis and right hip trochanteric bursitis.
In a work status note dated December 4, 2019, Dr. Miranzadeh indicated that appellant was
fully incapacitated from work from December 7, 2019 through January 9, 2020.
On January 15, 2020 OWCP referred appellant, along with a SOAF and the medical record,
to Dr. James R. Bresch, a Board-certified orthopedic surgeon, for an impartial medical
examination in order to resolve the conflict of medical opinion evidence, regarding whether

6
The Board determined that the October 13, 2017 DMA’s report lacked sufficient medical rationale to create a
conflict in medical opinion evidence with Dr. Miranzadeh.

3

appellant sustained a left knee torn meniscus and arthritis as a consequence of his accepted
April 16, 2013 employment injury.
In a February 10, 2020 report, Dr. Bresch noted that appellant sustained right knee and foot
and low back injuries after an April 2013 fall. He recounted that on May 10, 2017 appellant was
participating in physical therapy for his right knee when he experienced a new onset of left knee
pain. Dr. Bresch indicated that subsequent diagnostic testing revealed a degenerative tear of the
left knee medial meniscus and medial compartmental osteoarthritis. Upon physical examination
of appellant’s left knee, he observed positive medial joint line tenderness and positive Apley and
McMurray signs, consistent with a medial meniscus tear. Dr. Bresch assessed degenerative tear
of the medial meniscus and mild medial compartment osteoarthritis of the left knee. He opined
that, although appellant had a prolonged history of right knee difficulties following his accepted
April 2013 claim, he “[did] not feel that these [two] events are causally related.” Dr. Bresch
explained that, within the “orthopedic literature,” there were no documented studies that suggested
that in the rehabilitation process following a total knee arthroplasty there was any increased
incidence of a meniscal tear on the contralateral extremity without a specific additional traumatic
episode or event. Regarding whether appellant’s left knee condition resulted from overuse, he
reported that statistical studies showed that, because appellant was never in a protected weight
bearing status on the right side, there had not been significant excessive compressive loads on the
right. Dr. Bresch concluded that appellant’s left knee medial meniscus degenerative tear and
arthritis were not causally related to the April 2013 “accident.”
By decision dated April 6, 2020, OWCP denied expansion of the acceptance of appellant’s
claim to include a consequential left knee injury, finding that the medical evidence of record was
insufficient to establish that the additional conditions were causally related to his April 16, 2013
employment injury.
On April 10, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on July 14, 2020.
Counsel argued that the IME, Dr. Bresch, merely echoed the opinion of the second opinion
examiner and erroneously relied on medical literature, rather than objective medical evidence.
Appellant subsequently submitted a narrative report dated September 9, 2020 by
Dr. Miranzadeh who recounted appellant’s complaints of continued difficulty with his right knee
despite surgery and physical therapy. Dr. Miranzadeh reported right knee examination findings of
mild swelling, tenderness to palpation, and decreased range of motion. He diagnosed right knee
sprain, status post right knee total arthroplasty, right foot plantar fasciitis secondary to the right
knee sprain, and lumbosacral spondylolysis. Dr. Miranzadeh authorized appellant to continue to
work with specific restrictions and recommended physical therapy and a home exercise program.
By decision dated September 21, 2020, OWCP’s hearing representative affirmed the
April 6, 2020 decision. She found that the special weight of the medical evidence rested with
Dr. Bresch, the IME, who opined, in a February 10, 2020 report, that appellant’s left knee medial
meniscus tear was not causally related or consequential to his accepted April 16, 2013 employment
injury.

4

LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.7
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to a claimant’s own intentional misconduct.8 The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.9 With respect
to consequential injuries, the Board has held that, where an injury is sustained as a consequence
of an impairment residual to an employment injury, the new or second injury, even though
nonemployment related, is deemed, because of the chain of causation, to arise out of and in the
course of employment and is compensable.10
The medical evidence required to establish causal relationship between a specific
condition, as well as any attendant disability claimed, and the employment injury, is rationalized
medical opinion evidence.11 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.12 Additionally, the opinion of the physician must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment factor(s) identified by the claimant.13
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or IME who shall make an examination.14
This is called an impartial medical examination and OWCP will select a physician who is qualified
7

R.J., Docket No. 17-1365 (issued May 8, 2019); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B.,
Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
8
C.W., Docket No. 18-1536 (issued June 24, 2019); C.R., Docket No. 18-1285 (issued February 12, 2019);
Albert F. Ranieri, 55 ECAB 598 (2004); Clement Jay After Buffalo, 45 ECAB 707 (1994).
9

R.M., Docket No. 18-1621 (issued August 23, 2019); Debra L. Dilworth, 57 ECAB 516 (2006).

10

K.C., Docket No. 19-1251 (issued January 24, 2020); R.V., Docket No. 18-0552 (issued November 5, 2018); L.S.,
Docket No. 08-1270 (issued July 2, 2009).
11
T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
12

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

13

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
14
5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).

5

in the appropriate specialty and who has no prior connection with the case.15 When a case is
referred to an IME for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.16
ANALYSIS
The Board finds that the case is not in posture for decision.
In the prior appeal, the Board remanded the case to OWCP to obtain a report from an IME
who was to determine whether appellant sustained left knee medial meniscus tear and arthritis
conditions as a consequence of his accepted April 16, 2013 employment injury. OWCP
subsequently referred appellant to Dr. Bresch for an impartial medical examination in order to
resolve the conflict in the medical evidence.
As noted, when a case is referred to an IME for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.17 In this case, the Board finds that the report of
Dr. Bresch, serving as the IME, lacked sufficient medical rationale to carry the special weight of
the medical evidence.18 In his February 10, 2020 report, Dr. Bresch diagnosed left knee
degenerative tear of the medial meniscus and mild medial compartment osteoarthritis and noted
appellant’s history of right knee difficulties. He reported that he did not “feel that these [two]
events are causally related.” The Board finds that Dr. Bresch’s opinion is equivocal and
speculative as he did not definitely opine on whether appellant sustained consequential left knee
conditions.19 The Board has held that medical opinions which are equivocal or speculative are of
diminished probative value.20
The Board notes that, in support of his opinion, Dr. Bresch merely referenced “orthopedic
literature” and “documented studies” and provided a general conclusion regarding causal
relationship. The Board finds, therefore, that he did not provide sufficient medical rationale to
support his conclusion.21 The Board has found that when an IME fails to provide medical
15

20 C.F.R. § 10.321.

16

K.D., Docket No. 19-0281 (issued June 30, 2020); J.W., Docket No. 19-1271 (issued February 14, 2020);
Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).
17

Id.

18

See V.K., Docket No. 19-0422 (issued June 10, 2020).

19

R.T., Docket No. 20-0081 (issued June 24, 2020); C.T., Docket No. 19-0508 (issued September 5, 2019); F.D.,
Docket No. 18-1596 (issued June 18, 2019).
20

T.M., Docket No. 19-1414 (issued February 12, 2020); S.R., Docket No. 16-0657 (issued July 13, 2016); Minnie
Cook, Docket No. 99-1848 (issued December 20, 2000).
21
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. J.W., Docket No. 18-0678 (issued March 3,
2020); see V.T., Docket No. 18-0881 (issued November 19, 2018); T.M., Docket No. 08-975 (issued February 6,
2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

6

reasoning to support his or her conclusory statements about a claimant’s condition, it is insufficient
to resolve a conflict in the medical evidence.22 Accordingly, the Board finds that Dr. Bresch’s
opinion lacks the specificity and detail needed to carry the special weight of the medical evidence.
The Board has also held that, when OWCP obtains an opinion from an IME for the purpose
of resolving a conflict in the medical evidence and the IME’s opinion requires clarification or
elaboration, it must secure a supplemental report to correct the defect in the original report.23
Accordingly, the case will be remanded to OWCP for a fully-rationalized opinion from Dr. Bresch,
based upon an accurate history, regarding whether appellant sustained an additional left knee
condition as a consequence of his accepted April 16, 2013 employment injury. If Dr. Bresch is
unable to clarify his opinion or if his requested supplemental report is also lacking rationale,
OWCP shall refer appellant to a new IME for the purpose of obtaining a rationalized medical
opinion on the issue.24 Following this and any other such further development as may be deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

22

A.G., Docket No. 19-0220 (issued August 1, 2019); P.F., Docket No. 13-0728 (issued September 9, 2014);
James T. Johnson, 39 ECAB 1252 (1988).
23

S.P., Docket No. 20-0418 (issued February 19, 2021); Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232 (1988); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Developing and Evaluating Medical Evidence, Chapter 2.810.11.c (September 2010).
24
T.C., Docket No. 20-1170 (issued January 29, 2021); M.D., Docket No. 19-0510 (issued August 6, 2019); Harold
Travis, 30 ECAB 1071 (1979).

7

ORDER
IT IS HEREBY ORDERED THAT the September 21, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 21, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 04-2160
Issued: July 18, 2013

Case Submitted on the Record

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

JURISDICTION
On August 16, 2004 appellant, through counsel, filed a timely appeal from an August 3,
2004 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration.1 Because more than one year has elapsed between the last merit
decision dated April 3, 2003 to the filing of this appeal,2 and pursuant to the Federal Employees’
Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of appellant’s claim.

1

On February 18, 2005 the Board issued an order dismissing the appeal as it had not received a signed
authorization form from appellant authorizing Alan J. Shapiro, Esquire, to represent her. On April 25, 2005 the
Board vacated the order and reinstated the appeal as the statement of representation was submitted with appellant’s
petition for reconsideration.
2

For final adverse decisions of OWCP issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2) (2008).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
On October 30, 2002 appellant, then a 46-year-old mail handler, filed a traumatic injury
claim alleging that on October 27, 2002 she injured her lower back and sustained a pinched
nerve while pulling all-purpose containers and emptying an elevator.
Appellant submitted an October 30, 2002 disability slip from Brent Aubrey, a physician’s
assistant, who attributed her disability on October 30, 2002 to back pain and a pinched nerve.
She was released to return to a desk job on October 31, 2002.
In a December 16, 2002 report, Dr. Edward J. Lairson, a treating Board-certified
physiatrist, provided findings on physical examination and reviewed an x-ray. He diagnosed
lumbar sprain/strain. Appellant related that in late October 2002, she devleoped low back pain
and right leg radicular symptoms due to leaning forward at work. On review an x-ray revealed
L4-5 grade 1 spondylolisthesis and some mild L4-5 degenerative disc narrowing.
By letter dated February 24, 2003, OWCP informed appellant that the evidence was
insufficient to support her claim. She was requested to submit additional medical and factual
evidence and given 30 days to provide this information.
Appellant submitted reports from Dr. Lairson dated January 6, February 4 and
March 6, 2003. Dr. Lairson reiterated the diagnosis of sprain/strain and provided findings on
physical examination. Appellant informed Dr. Lairson that her back symptoms had been
aggravated by her work activities of frequent lifting of 10-pound mail buckets. Dr. Lairson
related the x-ray finding of mild degenerative disc disease and mild spondylolisthesis at L4-5.
By decision dated April 3, 2003, OWCP denied appellant’s claim. It found that there was
not sufficient medical evidence to establish her back condition as a result of the October 27,
2002 employment incident.
In a letter dated May 21, 2004, appellant’s counsel requested reconsideration. She
submitted additional reports from Dr. Lairson dated March 11, 27 and April 18, 2003.
Dr. Lairson reiterated the diagnosis of back sprain/strain. On March 27, 2003 he diagnosed
lumbar sprain/strain, L4-5 degenerative lumbar disc disease and mild L4-5 spinal stenosis.
By decision dated August 3, 2004, OWCP denied appellant’s reconsideration request on
the grounds that it was untimely filed and failed to establish clear evidence of error.

2

LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.4 It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision.5
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that OWCP’s final merit decision was in error.6
Its procedures state that OWCP will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth under section 10.607 of OWCP regulations,7 if the
claimant’s application for review shows clear evidence of error on the part of OWCP.8 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.10 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. 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 on the part of OWCP. To show clear
evidence of error, the evidence submitted 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 OWCP’s decision.11
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). 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 not clear

4

See J.W., 59 ECAB 507 (2008); Mary A. Ceglia, 55 ECAB 626 (2004);

5

20 C.F.R. § 10.607; see B.W., Docket No. 10-323 (issued September 2, 2010); A.F., 59 ECAB 714 (2008);
Gladys Mercado, 52 ECAB 255 (2001).
6

D.G., 59 ECAB 455 (2008); Cresenciano Martinez, 51 ECAB 322 (2000)

7

20 C.F.R. § 10.607.

8

See M.L., Docket No. 09-956 (issued April 15, 2010); Robert G. Burns, 57 ECAB 657 (2006).

9

Andrew Fullman, 57 ECAB 574 (2006); Alberta Dukes, 56 ECAB 247 (2005).

10

F.R., Docket No. 09-575 (issued January 4, 2010); S.D., 58 ECAB 713 (2007); Joseph R. Santos, 57 ECAB
554 (2006).
11

J.S., Docket No. 10-385 (issued September 15, 2010); D.D., 58 ECAB 206 (2006); Robert G. Burns, supra
note 8.

3

evidence of error.12 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.13
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide for a one-year time limitation period for requesting reconsideration
following an OWCP decision.14 A right to reconsideration within one year also accompanies any
subsequent merit decision on the issues.15 As appellant’s May 21, 2004 request for
reconsideration was submitted more than one year after the most recent merit decision of April 3,
2003, it was untimely. Consequently, she must demonstrate clear evidence of error by OWCP in
denying her claim for compensation.16
Appellant’s traumatic injury claim was denied because the medical evidence was found
insufficient to establish that her back condition was a result of the October 27, 2002 employment
incident. Dr. Lairson’s additional reports are not sufficient to establish clear evidence of error as
he provided no history of the incident or an opinion on how appellant’s back condition was
causally related to the October 27, 2002 employment incident. The Board notes that the reports
from Dr. Lairson are repetitive of statements he made in the reports of record that were
previously reviewed and found insufficient to establish appellant’s claim. Accordingly, this
evidence does not establish clear evidence of error.
Appellant has not otherwise provided any argument or evidence of sufficient probative
value to shift the weight of the evidence in her favor and raise a substantial question as to the
correctness of OWCP’s April 3, 2003 decision denying her claim on the grounds that there was
no medical evidence establishing a diagnosed condition as a result of the October 27, 2002
employment incident. Consequently, OWCP properly denied appellant’s reconsideration request
as it was untimely and failed to establish clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.

12

James Mirra, 56 ECAB 738 (2005); 20 C.F.R. § 10.607(b).

13

See M.L., supra note 8; G.H., 58 ECAB 183 (2006); Jack D. Johnson, 57 ECAB 593 (2006);

14

20 C.F.R. § 10.607(a).

15

Robert F. Stone, 57 ECAB 393 (2005).

16

Supra note 14; see D.G., supra note 6; Debra McDavid, 57 ECAB 149 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 3, 2004 is affirmed.
Issued: July 18, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Denver, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1357
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On September 14, 2021 appellant filed a timely appeal from a May 19, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated March 5, 2021 to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
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).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 18, 2019 appellant, then a 57-year-old scheduling officer, filed a traumatic
injury claim (Form CA-1) alleging that on October 17, 2019 she experienced an asthma attack
when exposed to dust while in the performance of duty. She stopped work on the date of injury.
In support of her claim, appellant submitted an October 17, 2019 hospital emergency
department report by Dr. Richard D. Zane, Board-certified in emergency medicine. Dr. Zane
related that appellant had a history of asthma, and had not experienced a severe exacerbation since
2014 until that day while in her office in the baggage claim area at work. He attributed the current
episode to odor and mold caused by water leaking through the ceiling tiles in her office. On
examination, Dr. Zane observed diminished expiratory sounds with end expiratory wheezing,
coughing, tachycardia, dyspnea, respiratory distress, and tremulousness. As nebulizer treatments
in the emergency department did not improve appellant’s symptoms, she was admitted to the
intensive care unit. Dr. Zane diagnosed an asthma exacerbation attack.
In an October 17, 2019 intensive care unit report, Dr. Richard William Vandivier, Boardcertified in internal medicine and pulmonology, noted that appellant presented with acute shortness
of breath while at work. He noted “[s]he states that there has been some construction and leaking
of moldy odor fluid in her office which likely precipitated her shortness of breath.”
In an October 18, 2019 hospital discharge report, Dr. Vandivier diagnosed an asthma
exacerbation and prescribed medication. He noted that it was important for appellant to avoid any
environmental triggers, particularly at her workplace, “to prevent this from occurring again.”
In a development letter dated June 12, 2020, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. In a separate development letter of even
date, OWCP requested that the employing establishment provide comments from a knowledgeable
supervisor on the accuracy of appellant’s statements and the type of tasks performed which
resulted in the exposure and the duration. It afforded both parties 30 days to provide the necessary
evidence.
In response, the employing establishment provided a June 22, 2020 statement confirming
that in the area where appellant was seated on October 17, 2019, there were missing ceiling tiles
and large trashcans placed to collect dripping water. There was also a “smell that was not right.
[Appellant] began coughing and using her emergency inhaler.” She left the area at her supervisor’s
instruction, but her breathing became more erratic. Paramedics were called to the scene and
recommended appellant be taken to an emergency department. Appellant’s husband then
transported her to the hospital.
In a June 24, 2020 statement, appellant’s supervisor, asserted that on the date appellant
experienced an asthma attack, “[w]hen entering the office there was a strong mildew smell with
several wet ceiling tiles and trash cans filled with water.” Appellant began coughing 30 minutes
after her arrival. She exited the office to get fresh air, then began struggling to breathe. Paramedics
were summonsed and administered medication, which did not relieve appellant’s symptoms.
Appellant’s husband then transported her to the hospital.

2

By decision dated July 23, 2020, OWCP accepted that the October 17, 2019 incident
occurred as alleged but denied appellant’s claim as the medical evidence of record did not contain
a diagnosis causally related to the accepted incident. It concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
On August 11, 2020 appellant requested reconsideration.
medical evidence.

She submitted additional

In an August 4, 2020 report, Dr. Mark Nathanson, an osteopath specializing in family
medicine, noted treating appellant for severe, persistent asthma for more than five years.
Appellant also submitted employing establishment e-mails dated from October 18
through 20, 2019 noting that a water pipe had broken above her work area, causing extensive
leakage and significant odor. In an October 18, 2019 e-mail, a safety specialist, cautioned that
there were “layers of particles that can easily set off [appellant’s] asthma again.”
By decision dated September 16, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
On December 2, 2020 appellant requested reconsideration. She submitted an October 1,
2020 report by Dr. Nathanson, who noted that appellant had been doing fairly well with her asthma
until an exacerbation at work caused by black mold on waterlogged tiles which caused appellant
to be hospitalized due to the injury. Dr. Nathanson diagnosed a resolved severe exacerbation of
moderate persistent allergic asthma, vocal cord dysfunction, and stable asthma. He prescribed
medication.
By decision dated March 5, 2021, OWCP modified its July 23, 2020 decision to find that
appellant had established a diagnosis that could reasonably be connected to the claimed condition.
The claim remained denied as the medical evidence of record was insufficient to establish causal
relationship.
On May 12, 2021 appellant requested reconsideration. She submitted a May 7, 2021
statement reiterating her account of the events of October 17, 2019. Appellant also submitted an
April 26, 2021 note from Dr. Nathanson noting that her “[a]cute attack which led to
hospitalization” was “caused by dust and other particulate components which stemmed from wet
ceiling tiles at her place of work.” He opined, “this is what brought on her attack.”
By decision dated May 19, 2021, OWCP denied appellant’s request for reconsideration. It
found, “[s]pecifically, causal relationship is a medical issue and you did not submit any medical
evidence in support of your request for reconsideration. We have not received a well-rationalized
medical report.…”

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 2
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 4 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 5 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 6
ANALYSIS
The Board finds that this case is not in posture for decision.
In denying appellant’s request for reconsideration, OWCP did not reference
Dr. Nathanson’s April 26, 2021 report addressing the causal relationship between the claimed
asthma attack to appellant’s exposure to wet ceiling tiles and particulates at the employing
establishment.
In the case of William A. Couch,7 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. While OWCP is not required to list every piece of evidence
submitted to the record, there is no indication that Dr. Nathanson’s April 26, 2021 report was
reviewed and considered by OWCP in its May 19, 2021 decision. 8 In its May 19, 2021 decision,
OWCP denied appellant’s request for reconsideration, finding that she failed to submit any medical
evidence in support of her request for reconsideration. As it did not review or consider
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(a).

6

Id. at § 10.608(b).

7

41 ECAB 548, 553 (1990).

8

See T.G., Docket No. 19-1930 (issued January 8, 2021).

4

Dr. Nathanson’s April 26, 2021 report, it failed to follow its own procedures by properly
discussing the relevant evidence of record. 9
As the Board’s decisions are final as to the subject matter appealed, it is crucial that OWCP
address all relevant evidence properly submitted to OWCP prior to the issuance of its decision. 10
For this reason, the case will be remanded to OWCP to properly consider all of the evidence
of record. Following this and other such further development as deems necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

9
All evidence submitted should be reviewed and discussed in the decision. Evidence received following
development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be
referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012).
10

20 C.F.R. § 501.6(d); supra note 8; W.G., Docket No. 20-1536 (issued December 17, 2021); see also A.V., Docket
No. 20-1251 (issued January 28, 2021).

5

ORDER
IT IS HEREBY ORDERED THAT the May 19, 2021 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: March 15, 2022
Washington, DC

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

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

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

6