United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
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__________________________________________ )
B.R., Appellant

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

Docket No. 08-252
Issued: June 10, 2008

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 September 25, 2007 appellant filed a timely appeal from a September 19, 2007 Office
of Workers’ Compensation Programs’ merit decision. 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 met his burden of proof to establish continuing
disability after April 6, 2006.
FACTUAL HISTORY
This is the fourth appeal before the Board. On April 4, 1988 appellant, a 31-year-old
aircraft mechanic, injured his right knee while in the performance of duty. The Office accepted
the claim for internal derangement of the right knee. Appellant stopped work in September 1988
and returned to work briefly in 1989. The Office placed him on the periodic rolls. Appellant
was referred for vocational rehabilitation and retrained as an automobile mechanic technician.
He accepted a modified-duty job as an automobile mechanic in 1994. By decision dated June 21,

1996, the Office reduced appellant’s wage-earning capacity based on his actual earnings as an
automobile mechanic technician. On July 26, 1996 appellant requested reconsideration of the
June 21, 1996 decision, seeking the resumption of total disability compensation as of
December 19, 1996. By decision dated October 3, 1996, the Office denied the claim. By
nonmerit decision dated January 28, 1997, the Office denied reconsideration. In a January 6,
2000 decision, the Board found that the Office improperly failed to reopen appellant’s case for a
merit review.1 On remand, the Office, in a February 4, 2000 decision, found that appellant
submitted sufficient medical evidence to establish that he was entitled to wage-loss
compensation for total disability beginning December 19, 1996.
In a work capacity evaluation dated July 25, 2005, Dr. Abraham Abdo, appellant’s
treating physician, stated that maximum medical improvement had been reached and that
appellant was capable of performing his usual job with no restrictions.2
In a notice of proposed termination dated March 6, 2006, the Office, based on Dr. Abdo’s
report, found that the weight of the medical evidence demonstrated appellant was no longer
disabled due to his April 4, 1988 employment injury. The Office allowed appellant 30 days to
submit additional evidence or legal argument in opposition to the proposed termination. By
decision dated April 6, 2006, the Office terminated appellant’s compensation benefits. By
decision dated May 26, 2006, the Office denied modification of the April 6, 2006 termination
decision.
By letter dated June 2, 2006, appellant requested reconsideration. He submitted a June 6,
2006 report from Dr. Abdo, who stated, “[t]he work capacity evaluation that was filled out on
July 25, 2005 is for tune-up mechanic, [for] which the job description [is] attached. I have not
done a work capacity evaluation for an aircraft mechanic.”
By decision dated August 2, 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.
In an August 7, 2007 decision, the Board affirmed the April 6 and May 26, 2006
decisions, finding that Dr. Abdo’s July 25, 2005 work capacity evaluation constituted sufficient
medical evidence to terminate compensation. However, the Board set aside the August 2, 2006
nonmerit decision, finding that the Office erred in failing to consider relevant and pertinent new
evidence, i.e., Dr. Abdo’s June 6, 2006 report. The Board remanded the case for a merit
decision. The complete facts of this case are set forth in the Board’s prior decisions and are
incorporated herein by reference.3
1

Docket No. 98-336 (issued January 6, 2000).

2

By order dated January 17, 2006, the Board dismissed an appeal by appellant on the grounds that the record did
not contain a final decision over which it had jurisdiction. Docket No. 05-1385.
3

Docket No. 06-2100 (issued August 7, 2007). The Board notes that the case file is incomplete, as it does not
contain much of the documentation pertaining to the procedural development of this case. However, the instant
record does contain a June 1, 2001 Office decision, which includes sufficient references to the pertinent decisions,
findings and procedural occurrences in the case for the Board to render an informed adjudication.

2

By decision dated September 19, 2007, the Office denied modification of the April 6,
2006 termination decision. The Office found that Dr. Abdo’s June 6, 2006 report did not provide
sufficient medical rationale to establish that appellant was disabled due to residuals of his
accepted 1988 employment injury. It noted that Dr. Abdo had previously found that appellant
return to work without restriction and that the new medical evidence did not address disability
for work.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.4 If
the Office meets its burden of proof in justifying termination of compensation benefits, the
burden is on the claimant to establish that any subsequent disability is causally related to the
accepted employment injury.5
ANALYSIS
Following the termination of appellant’s compensation benefits on April 6, 2006,
appellant submitted a June 6, 2006 note from Dr. Abdo. He stated that his prior July 25, 2005
work capacity evaluation was for a tune-up mechanic position description, not appellant’s dateof-injury position as an aircraft mechanic. Dr. Abdo did not address the issue of disability for
work. He did not provide an opinion on whether appellant was totally disabled due to residuals
of his accepted condition following the termination of compensation in 2006.
As noted, the July 25, 2005 work capacity evaluation from Dr. Abdo, appellant’s treating
physician, found that appellant had reached maximum medical improvement and that he was
able to perform work without restrictions. The July 25, 2005 work capacity evaluation stated
that appellant could work his usual job for eight hours without restrictions. The June 6, 2006
report does not provide any opinion that appellant remains disabled due to the accepted
employment injury. Dr. Abdo’s June 6, 2006 note is not probative on the issue of continuing
disability after April 6, 2006. The Board will affirm the September 19, 2007 Office decision.
CONCLUSION
The Board finds that appellant has not established disability on or after April 6, 2006 due
to his accepted injury.

4

Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

Darlene R. Kennedy, 57 ECAB 414 (2006).

3

ORDER
IT IS HEREBY ORDERED THAT the September 19, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 2008
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

4


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

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

Docket No. 08-2473
Issued: June 10, 2009

Case Submitted on the Record

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

JURISDICTION
On September 16, 2008 appellant filed an appeal from decisions of the Office of
Workers’ Compensation Programs dated January 3 and July 25, 2008. 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 sustained a recurrence of disability on August 3, 2007
causally related to the accepted cervical injury.
FACTUAL HISTORY
On August 7, 2000 appellant, then a 52-year-old letter carrier, filed a Form CA-2,
occupational disease claim, alleging that factors of his federal employment caused upper back
pain. He stopped work that day. On September 16, 2000 the Office accepted that appellant
sustained employment-related cervical spondylosis. Appellant returned to four hours of limited
duty daily on September 6, 2000 and received wage-loss compensation for four hours daily.

By letter dated July 13, 2001, the Office advised appellant that it had adjusted his
compensation to reflect his modified part-time letter carrier duties that were effective
October 2, 2000. It accepted four recurrences of disability, and in May 2006, appellant began
working a three-hour day.1
On March 1, 2007 the Office referred appellant to Dr. P. Leo Varriale, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a March 15, 2007 report, Dr. Varriale
reviewed the medical record, the statement of accepted facts, and appellant’s complaints of pain
in the neck and shoulder due to repetitive delivery and carrying mail. He reported that for the
past several months appellant had been working three hours a day monitoring gates and
answering telephones. Dr. Varriale noted that appellant exhibited exaggerated pain behavior on
physical examination with decreased range of motion of the cervical spine and shoulder
abduction, no spasm or sensory deficit, and full strength of the biceps, triceps and intrinsic
muscles of the hand and internal and external rotators of the shoulder and no swelling or
tenderness about the shoulder. He diagnosed cervical spondylosis as confirmed on computerized
tomography, advising that this condition was permanently aggravated by appellant’s prior job
duties. Dr. Varriale stated that appellant was unable to perform mail carrier duties but could
work six hours a day with permanent restrictions of no reaching, reaching above the shoulder,
twisting or climbing, two hours of walking and standing, and one hour of bending and stooping,
pushing, pulling, lifting, squatting and kneeling with a 10-pound weight restriction. Based on
Dr. Varriale’s opinion, on July 18, 2007, appellant was offered and accepted a modified position
to begin at six hours a day.2 However, he did not work this assignment and continued to work
three hours a day.
On October 2, 2007 appellant filed a Form CA-2a, recurrence of disability claim, alleging
that he sustained a recurrence of disability on August 3, 2007, stating that he could not work
because his accepted injury worsened. He submitted form reports from Dr. Tsai C. Chao, a
Board-certified physiatrist, dated August 31 and September 4, 2007. Dr. Chao diagnosed
multiple herniated discs of the cervical spine with radiculopathy, right shoulder impingement and
left cubital tunnel syndrome and advised that appellant was totally disabled beginning on
August 3, 2007. On September 26, 2007 he advised that appellant could return to limited duties
for three hours daily with restrictions of three hours sitting, standing, walking, pushing and
pulling, no climbing, kneeling or reaching above the shoulder and one hour of bending, stooping
and twisting with a continuous weight restriction of 0 to 5 pounds and intermittent restriction of
5 to 10 pounds. In letters dated November 5 and 16, 2007, the Office informed appellant of the
evidence needed to support his recurrence claim. Dr. Chao submitted reports reiterating the
diagnoses and advising that appellant could only work three hours of modified duty daily with
restrictions to his physical activity.

1

An April 12, 2007 job offer listed job duties of answering the telephone, assisting customers in the lobby,
advising customers about the automated postal center, updating redbooks and assisting carrier’s paperwork. Lifting
and carrying were restricted to 10 pounds, sitting, standing, walking, pushing, pulling, bending, stooping, and
twisting to three hours daily with no climbing, kneeling or reaching above the shoulder.
2

The job duties were consistent with the April 12, 2007 job offer, id., but were for six hours a day.

2

By decision dated January 3, 2008, the Office denied appellant’s claim that he sustained a
recurrence of disability on August 3, 2007. It found that the medical evidence was insufficient to
establish that the accepted condition had worsened such that he was totally disabled from his
light-duty position.
On February 1, 2008 appellant requested a hearing. He submitted a January 18, 2008
report in which Dr. Chao reported that he first saw appellant on October 22, 2000. Dr. Chao
reviewed appellant’s physical findings and treatment regimen and advised that on August 3,
2007 appellant reported a worsening of neck and right shoulder pain. Cervical spine
examination demonstrated intensified pain at the end of range of motion in all directions with
significant muscle spasm and tenderness. Tenderness was also found on examination of the right
shoulder. Dr. Chao noted that he issued a temporary total disability certificate at that time and
recommended physical and occupational therapy. He stated that on September 26, 2007 the
intensity of the muscle spasms and tenderness was much improved and appellant was advised to
resume limited duty for three hours a day. Dr. Chao noted that appellant’s complaints and
physical findings on October 24 and November 21, 2007 and January 9, 2008 were similar to
those found on September 26, 2007. He also noted that appellant was in a motor vehicle
accident in October 2006 that caused a period of temporary total disability. Dr. Chao also
provided a number of form reports reiterating his findings and conclusions.
At the hearing, held telephonically on May 1, 2008, appellant testified that he stopped
work on August 3, 2007 because his neck was hurting and he needed to rest. He stated that he
had motor vehicle accidents in October 2000 and January 2008 that were not employment related
and that his neck hurt daily. Appellant testified that employing establishment management gave
him a hard time and that he had not filed other workers’ compensation claims. He thought he
returned to work for three hours a day in October 2007. By letter dated May 27, 2008, the
employing establishment advised that it had provided a job offer in compliance with
Dr. Varriale’s restrictions.
In a July 25, 2008 decision, an Office hearing representative affirmed the January 3, 2008
decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.3 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.4
3

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

4

Id.

3

When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.5
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of disability on August 3, 2007 due to his accepted cervical spondylosis.
Appellant did not establish that the nature and extent of his injury-related condition changed on
August 3, 2007 so as to prevent him from continuing to perform his limited-duty assignment.
The Board has held that a partially disabled claimant who returns to a light-duty job has the
burden of proving that he or she cannot perform the light duty, if a recurrence of total disability
is claimed.6 The issue of whether an employee has disability from performing a modified
position is primarily a medical question and must be resolved by probative medical evidence.7 A
claimant’s burden includes the necessity of furnishing medical evidence from a physician who,
on the basis of a complete and accurate factual and medical history, concludes that the condition
is causally related to the employment injury and supports that conclusion with sound medical
rationale. Where no such rationale is present, the medical evidence is of diminished probative
value.8
On August 3, 2007 the day appellant stopped work, Dr. Chao reported that appellant
stopped work due to pain and advised that he was temporarily totally disabled. He submitted
numerous reports advising that appellant remained totally disabled. However, Dr. Chao did not
demonstrate any knowledge of the job requirements of the essentially sedentary duties of
appellant’s limited-duty position or provide a rationalized explanation as to why he could not
perform the light-duty work.9 Furthermore, he did not address appellant’s motor vehicle
accidents or explain how they contributed to his condition.
The Board has long held that medical conclusions unsupported by rationale are of
diminished probative value and insufficient to establish causal relationship.10 It is appellant’s
burden of proof to submit the necessary medical evidence to establish a claim for a recurrence.
A mere conclusion without the necessary medical rationale explaining how and why the
physician believes that a claimant’s accepted exposure would result in a diagnosed condition is
5

Shelly A. Paolinetti, 52 ECAB 391 (2001); Terry R. Hedman, 38 ECAB 222 (1986).

6

See William M. Bailey, 51 ECAB 197 (1999).

7

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

8

Mary A. Ceglia, 55 ECAB 626 (2004).

9

Supra note 1.

10

See Albert C. Brown, 52 ECAB 152 (2000).

4

not sufficient to meet the claimant’s burden of proof. The medical evidence must also include
rationale explaining how the physician reached the conclusion he or she is supporting.11 The
record in this case does not contain a medical report providing a reasoned medical opinion that
appellant’s claimed recurrence of disability was caused by the accepted cervical spondylosis.12
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a recurrence of disability on August 3, 2007 causally related to his accepted cervical
spondylosis.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated July 25, 2008 be affirmed.
Issued: June 10, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11

Beverly A. Spencer, 55 ECAB 501 (2004).

12

Cecelia M. Corley, supra note 7.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, BOYDTON POST
OFFICE, Boydton, VA, Employer
__________________________________________

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Appearances:
Richard Haefner, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0893
Issued: October 18, 2017

Case Submitted on the Record

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

JURISDICTION
On March 16, 2017 appellant, through her representative, filed a timely appeal from a
November 18, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from the last merit decision, dated July 7, 2016, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3 the Board lacks jurisdiction to review the merits of the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal appellant’s representative contends that the evidence submitted on
reconsideration was that which was specifically requested in the July 8, 2016 merit decision.
FACTUAL HISTORY
On December 29, 2010 appellant, then a 46-year-old sales service and distribution
associate, filed an occupational disease claim (Form CA-2) alleging that on December 16, 2010
she first became aware that her right shoulder tendinitis was due to sorting all of the letters on
December 12, 14, and 15, 2010. By decision dated February 14, 2012, OWCP accepted
appellant’s occupational disease claim for thoracic region sprain/strain and right scapulothoracic
sprain/strain.
Appellant accepted a new modified assignment as a part-time flexible clerk on
February 27, 2012 working up to 40 hours a week. She accepted a series of modified part-time
flexible clerk positions beginning April 4 through October 17, 2012.
In a report dated January 17, 2013, Dr. John J. Faulkner, a family practitioner, noted that
appellant was sent home from work on December 26, 2012 and was paid administrative leave.
Appellant indicated that she filed a grievance.
The employing establishment provided appellant with a form entitled Notice of Removal
or Separation for Disability (not OWCP) which was effective January 25, 2013. Appellant filed
claims for wage-loss compensation, which OWCP authorized.
On November 7, 2013 the employing establishment offered appellant a modified position
of sales service/distribution associate. Appellant refused this position on November 12, 2013.
OWCP continued to pay appellant wage-loss compensation.
On April 9, 2014 the employing establishment directed appellant to return to work in
accordance with an arbitration decision. Appellant returned to work on April 17, 2014 in a
position as a modified sales service and distribution associate. She continued to claim
compensation for intermittent periods of leave without pay through May 30, 2014, which OWCP
paid.
In a letter dated June 2, 2014, OWCP referred appellant for a second opinion examination
with Dr. Richard Holm, a Board-certified orthopedic surgeon, to determine her continuing
residuals and disability from work. In a report dated June 19, 2014, Dr. Holm determined that
appellant could work at a medium physical level for eight hours a day with a lifting restriction of
20 pounds. He found that no further medical treatment was required.
On November 25, 2014 the employing establishment again offered appellant a modified
sales services and distribution associate position. Appellant refused this position on

2

November 25, 2014. She continued to file claims for wage-loss compensation which OWCP
paid.
The employing establishment offered appellant a new modified sales service distribution
associate position on March 10, 2015. In a letter dated April 3, 2015, OWCP informed appellant
that the offered position on March 10, 2015 was suitable work in accordance with Dr. Holm’s
work restrictions. It noted that the position remained available and afforded her 30 days to
accept the position and report to duty or provide her reasons for refusal. OWCP explained the
penalty provision of 5 U.S.C. § 8106(c)(2).
Appellant responded on April 24, 2015 and refused the offered position alleging that it
exceeded Dr. Holm’s work restrictions by requiring her to lift up to 30 pounds. She asserted that
the functional capacity evaluation did not address the actual duties of her position and refused
the offered position because it required boxing and distribution of mail. Appellant also asserted
that she could not work 30 hours a week.
In a letter dated May 8, 2015, OWCP informed appellant that her reasons for refusing the
offered position were not valid. It afforded her an additional 15 days to accept the offered
position and report to work.
On May 27, 2015 the employing establishment informed OWCP that appellant had not
reported for duty. On June 2, 2015 OWCP received a copy of the suitable work position
accepted and signed by appellant on May 10, 2015. In a letter dated May 29, 2015 and received
by OWCP on June 2, 2015, appellant asserted that she accepted the offered position on May 10,
2015 and mailed her acceptance to the employing establishment on May 11, 2015. She alleged
that she had not received a schedule and official letter to return to work. Appellant also provided
a copy of a letter addressed to the employing establishment dated May 10, 2015 indicating that
she accepted the job offer and requesting her schedule and return to work date.
By decision dated June 17, 2015, OWCP terminated appellant’s entitlement to
compensation effective May 2, 20153 due to her refusal of suitable work.
On July 2, 2015 appellant requested reconsideration. In a letter dated July 21, 2015, she
repeated her allegations that she mailed a signed and accepted copy of the job offer to the
employing establishment on May 11, 2015. Appellant asserted that she reported to work on
May 28, 2015, that the postmaster was not present on that date, and that she left a handwritten
note indicating that she accepted the job offer. She provided a copy of this letter. Appellant
returned to work again on July 8, 2015 and again signed the job offer. On July 11, 2015 the
May 11, 2015 letter arrived at the employing establishment. Appellant reviewed the letter which
had been delivered elsewhere and was opened and damaged. She submitted a copy of the job
offer signed on May 10, 2015 and date stamped by the employing establishment on
March 12, 2015.

3

There is no explanation for the selection of this date in the record. As the merits of the suitable work
termination are not before the Board, it will not address this issue on appeal. 20 C.F.R. §§ 501.2(c) and 501.3.

3

The employing establishment responded on July 30, 2015 and provided a timeline of
events noting that on June 18, 2015 appellant’s representative first provided notification that
appellant had accepted the job offer via her signature on May 10, 2015. Appellant telephoned
the employing establishment on July 7, 2015 and alleged that OWCP indicated that she should
receive another job offer and that she was awaiting instructions from her postmaster. The
employing establishment questioned why a job signed on May 10, 2015 would be date stamped
as received on March 12, 2015. It asserted that appellant removed the refusal indication, the
reasons for refusing, the original signature, and the original date.
The employing establishment provided appellant with a notice of separation, effective
July 24, 2015.
Appellant’s representative submitted a letter dated September 6, 2015 supporting
appellant’s allegations regarding the acceptance of the offered position. He provided a copy of
an envelope addressed to the postmaster, which indicated it was opened at the wrong address.
The postmark date is July 7, 2015.
By decision dated September 29, 2015, OWCP reviewed the merits of appellant’s claim,
but denied modification of its prior decision. It found that the job offer signed by appellant on
May 10, 2015, but date stamped received as March 12, 2015 was invalid.
Appellant requested reconsideration on November 17, 2015. She asserted that she made
copies of the offered position and decided to accept it on May 10, 2015. Appellant contended
that OWCP date stamped the job offer on March 12, 2015. She asserted that the postmaster
never responded to her written request for a return to work date. Appellant alleged that
administrative actions had to take place before her return to work such that she could not just
show up at the employing establishment and begin working. She noted that she was granted
disability retirement and asserted that this established that the offered position was not suitable
work.
By decision dated February 11, 2016, OWCP reviewed the merits of appellant’s claim,
but denied modification of its prior decision.
On April 13, 2016 appellant requested reconsideration of the February 11, 2016 merit
decision. Appellant’s representative submitted statements dated June 8 and 19, 2016 asserting
that he was talking to appellant on the telephone on May 10, 2015 and was a witness to the fact
that she went to the employing establishment on that date, purchased a stamped envelope and
used it to mail her accepted modified job offer. He asserted that appellant did not have an
original copy of the offer and signed the March 12, 2015 offer previously accepted by the
employing establishment. Appellant’s representative also asserted that he witnessed by
telephone appellant’s presence at the employing establishment on May 28, 2015 when she
presented her handwritten acceptance letter. Appellant asked if she was on the schedule to work,
and received a negative reply. Appellant’s representative submitted a copy of his telephone bill
indicating calls on May 10, 11, and 28, 2015 to Boydton, VA, the employing establishment’s
location.

4

In a July 7, 2016 decision, OWCP reviewed the merits of appellant’s claim, but denied
modification of its prior decisions. It found that the circumstances suggested that she made an
effort to accept the modified job offer, but that there was no evidence from the employing
establishment acknowledging timely receipt of the accepted job offer.
Appellant, through her representative, requested reconsideration on November 15, 2016
and asserted that he made a Freedom of Information Act (FOIA) request to the employing
establishment and received a copy of the handwritten note from appellant accepting the job offer
on May 10, 2015, and the envelope postmarked July 7, 2015 which noted that it was opened at
the wrong address. He again asserted that the letter was mailed on May 11, 2015. Appellant’s
representative also resubmitted a copy of the handwritten letter from appellant dated
May 28, 2015. This letter was addressed to the postmaster and date stamped by the employing
establishment on May 28, 2015. Appellant’s representative also submitted an operations analysis
from the employing establishment dated May 9 through July 18, 2016 which indicated that
appellant’s name did not appear on the schedule until the week of July 14, 2015.
Appellant’s representative argued that appellant took every action she could to accept the
job offer in a timely manner, that circumstances beyond her control delayed the May 11, 2015
letter, and that appellant was not scheduled to return to work. He asserted that appellant had
submitted evidence that the employing establishment acknowledged receipt of her agreement to
return to work.
By decision dated November 18, 2016, OWCP denied appellant’s request for
reconsideration of the merits of her claim, finding that she failed to submit relevant new and
pertinent evidence in support of her request for reconsideration. It explained that the evidence
submitted had no bearing on the issue of whether appellant notified her employing establishment
that she accepted the limited-duty job offer in May 2015 or that the employing establishment was
made aware of her purported acceptance or that she appeared for work to begin performing the
modified job as claimed.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.4
Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain
review of the merits of the claim by submitting in writing an application for reconsideration
which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted
a specific point of law; or advances a relevant legal argument not previously considered by
OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.5
Section 10.608 of OWCP’s regulations provides that when a request for reconsideration is
timely, but does meet at least one of these three requirements, OWCP will deny the application
for review without reopening the case for a review on the merits.6 Section 10.607(a) of OWCP’s
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608.

5

regulations provides that to be considered timely an application for reconsideration must be
received by OWCP within one year of the date of OWCP’s merit decision for which review is
sought.7
ANALYSIS
The Board finds OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
On November 15, 2016 appellant, through her representative, filed a timely request for
reconsideration from the July 7, 2016 merit decision. The underlying issue of the case is whether
appellant has established that she accepted a suitable work position.
In support of the request for reconsideration, appellant’s representative resubmitted the
letters from appellant dated May 10 and 28, 2015 received by the employing establishment and
previously considered by OWCP. The Board has held that the submission of evidence or
argument which repeats or duplicates evidence or argument already in the case record does not
constitute a basis for reopening a case under 5 U.S.C. § 8128(a).8
Appellant’s representative also presented additional documentation not previously
reviewed by OWCP consisting of a work schedule from the employing establishment. The
Board finds that the work schedule does not address the central issue of whether appellant
notified the employing establishment of her acceptance of the suitable work position and is,
therefore, not relevant to the central issue of the case. The Board has held that the submission of
evidence which does not address the particular issue involved does not constitute a basis for
reopening a case.9
The Board finds that appellant’s request for reconsideration does not establish that
OWCP erroneously applied or interpreted a specific point of law; does not advance a relevant
legal argument not previously considered by OWCP; and does not constitute relevant and
pertinent new evidence not previously considered by OWCP.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

7

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations¸ Chapter 2.1602.4
(February 2016).
8

See M.H., Docket No. 16-1382 (issued December 5, 2016); Eugene F. Butler, 36 ECAB 393, 398 (1984).

9

B.T., Docket No. 16-0785 (issued September 21, 2016); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G.
Williams, 52 ECAB 180 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the November 18, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 18, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albuquerque, NM, Employer
__________________________________________

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

Docket No. 07-1747
Issued: January 25, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 20, 2007 appellant timely appealed a merit decision of the Office of Workers’
Compensation Programs’ dated May 17, 2007, denying her claim for compensation. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established a left upper extremity condition causally
related to factors of her federal employment.
FACTUAL HISTORY
On January 9, 2006 appellant, then a 49-year-old rural mail carrier, filed an occupational
disease claim (Form CA-2) alleging that the pain in her left shoulder and left elbow and her left
carpal tunnel condition were causally related to her federal employment. She indicated that her
job involved continuous pushing, pulling and lifting. Appellant reported that she became aware
of her condition on January 24, 2004 and realized it was caused or aggravated by her

employment on December 6, 2005.
returned.

She stopped work on December 27, 2005 and has not

By letters dated January 30, 2006, the Office advised appellant and the employing
establishment that additional factual and medical evidence was needed.
Appellant submitted a narrative statement describing her duties and symptoms. She
noted that she had been on limited duty because of a right shoulder and right elbow surgery and
had to use her left arm as a result of those surgeries. Appellant submitted a March 7, 2006
Physical Work Performance Evaluation Summary and Functional Capacity Evaluation (FCE)
and a March 13, 2006 report from Dr. David A. Bernstein, a Board-certified orthopedic surgeon,
which reported on appellant’s right arm condition.
In a March 1, 2006 report, Dr. Robert P. Vitek, Board-certified in occupational medicine,
reported on the medical history of appellant’s left arm complaints. He advised that she had
tendinitis of the left arm and left carpal tunnel syndrome based on a July 7, 2005
electromyelogram (EMG).
By decision dated March 27, 2006, the Office denied appellant’s claim. It found that the
medical evidence did not demonstrate that the claimed medical condition was related to
established work-related events.
On March 26, 2007 appellant requested reconsideration of the Office’s March 27, 2006
decision.
In a March 20, 2007 medical report, Dr. Vitek addressed the cause of appellant’s left
hand carpal tunnel. He stated: “It is my understanding that the patient does a lot of activities
with her left upper extremity, especially the hand, as well as the right hand and I would consider
the symptoms that she had and still has of the left upper extremity to be related to her job.”
By decision dated May 17, 2007, the Office reviewed the case on its merits and denied
modification of the March 27, 2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing 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.2 These are the essential

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

2

elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.3
To establish that, an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion 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.4
ANALYSIS
Appellant alleged that her job duties as a rural mail carrier, which involved continuous
pushing, pulling and lifting, caused or contributed to her left upper extremity conditions of left
hand carpal tunnel and pain in her left shoulder and left elbow. The employing establishment did
not contest that appellant engaged in the identified activities during her federal employment and
the Office accepted that such work-related events were established. However, the medical
evidence is insufficient to establish that appellant’s diagnosed left upper extremity conditions are
causally related to the identified work factors or any other specific factors of her federal
employment.
In his March 13, 2006 report, Dr. Bernstein reported on appellant’s right upper extremity
condition. This evidence, however, is not relevant to the current claim which pertains to a left
upper extremity condition.
Appellant submitted medical reports dated March 1, 2006 and March 20, 2007 from
Dr. Vitek. In his March 1, 2006 report, Dr. Vitek diagnosed tendinitis of the left upper extremity
and left carpal tunnel syndrome. However, he did not specifically address whether any factors of
appellant’s employment caused or contributed to her conditions.5 In Dr. Vitek’s March 20, 2007
report, he noted that appellant did a lot of activities with her left upper extremity and opined that
3

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

4

Id.

5

Linda I. Sprague, 48 ECAB 386 (1997) (medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship).

3

he considered the symptoms she had and still has of the left upper extremity to be related to her
job. However, the Board notes that Dr. Vitek did not specifically address what factors of
appellant’s employment caused or contributed to her left upper extremity symptoms or provide
any medical rationale to explain his conclusion on causal relationship. Medical conclusions
unsupported by medical rationale are of diminished probative value and are insufficient to
establish causal relation.6 Consequently, the medical evidence from Dr. Vitek is insufficient to
establish appellant’s claim.
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.7
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
There is no reasoned medical evidence addressing how appellant’s employment duties
caused or aggravated a left upper extremity condition. She has not met her burden of proof in
establishing that she sustained a medical condition in the performance of duty causally related to
factors of her employment.

6

Albert C. Brown, 52 ECAB 152 (2000).

7

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

8

Id.

4

CONCLUSION
The Board finds that appellant did not submit medical evidence of sufficient probative
value to establish a left upper extremity condition causally related to factors of her federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated May 17, 2007 is affirmed.
Issued: January 25, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTI ARMY DEPOT, Corpus Christi, TX,
Employer
__________________________________________

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

Docket No. 10-1635
Issued: March 1, 2011

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 4, 2010 appellant filed a timely appeal from a March 9, 2010 nonmerit decision
of the Office of Workers’ Compensation Programs denying his request for reconsideration on the
grounds that it was untimely and failed to establish clear evidence of error. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit decision. The last
merit decision in this case was the Office’s October 15, 2007 decision denying appellant’s
occupational disease claim. The Board lacks jurisdiction to review the merits of the claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely and failed to establish clear
evidence of error.
1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

FACTUAL HISTORY
On July 3, 2007 appellant, then a 61-year-old quality control inspector, filed an
occupational disease claim alleging that he sustained hearing loss and damage to his eardrums
due to work-related noise exposure. He first realized that his condition was related to his
employment on June 10, 1980.2 Appellant retired on disability in 1997.
In a June 27, 2007 statement, appellant alleged that, in June 1968, an air hose ruptured
near his ear while he was working in the glass shop, causing pain and ringing in his ears. For the
next 20 years, he was exposed to deafening noise from high-torque drills and other tools, which
diminished his hearing.
In a July 16, 2007 letter, the Office informed appellant that the evidence was insufficient
to establish that he had filed a timely claim for benefits under the Federal Employees’
Compensation Act. It advised him to provide additional information, including details of his
work history, noise exposure and when he became aware that his hearing loss condition was
related to his employment.
Appellant submitted personnel records from June 14, 1971 through September 30, 1997,
the effective date of his disability retirement. On August 23, 2007 the employing establishment
controverted appellant’s claim on the grounds that it was untimely, noting that he had been
receiving workers’ compensation benefits since 1981 and had retired on disability on
August 15, 1997.
In a decision dated October 15, 2007, the Office denied appellant’s claim on the grounds
that it was untimely. Stating that the date of injury was June 18, 1968, it found that appellant
should have been aware of a relationship between his hearing loss condition and his employment
by June 18, 1971. The Office further found that the evidence did not support that appellant’s
immediate supervisor had actual knowledge of the injury within 30 days.
On November 30, 2009 appellant requested reconsideration. He asserted that he had
been poorly guided during the initial filing of his claim and that he had been unfairly denied
access to copies of forms and other documents in his file. Appellant also submitted a copy of his
June 27, 2007 letter to the Office.
Appellant submitted three narrative statements in support of his request for
reconsideration. On August 15, 2007 he noted that it was difficult to determine when he first
noticed his hearing loss. Appellant indicated that he was exposed to excessive noise for 8 to 12
hours a day, 7 days a week while he was in Viet Nam. On December 10, 2009 he alleged that he
was misguided and misinformed by Office personnel and was unfairly treated as a medicallyretired civil service employee. On January 6, 2010 appellant reiterated his request that his claim
be reconsidered and that he receive copies of his file.

2

The Office accepted appellant’s January 18, 1972 claim (File No. xxxxxx409) for lumbar intervertebral disc.

2

By decision dated March 9, 2010, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error.
LEGAL PRECEDENT
The Act provides that the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.3 The Office, through
its regulations, has imposed limitations on the exercise of its discretionary authority under
section 8128(a). To be entitled to a merit review of an Office decision denying or terminating a
benefit, a claimant must file her application for review within one year of the date of that
decision.4 The Board has found that the imposition of the one-year limitation does not constitute
an abuse of the discretionary authority granted the Office under section 8128(a) of the Act.5
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.6 Office regulations and procedure provide that the Office will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on the
part of the Office.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.8 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.12 The Board
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607(a).

5

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

6

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

20 C.F.R § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004).
8

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

9

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

10

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

11

See M.L., 60 ECAB __ (Docket No. 09-956, issued April 15, 2010). See Leona N. Travis, supra note 9.

12

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

3

makes an independent determination of whether a claimant has submitted clear evidence of error
on the part of the Office such that it abused its discretion in denying merit review in the face of
such evidence.13
ANALYSIS
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely and failed to establish clear
evidence of error.
The Office properly determined that appellant failed to file a timely application for
review. Its procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.14 A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.15 As appellant’s
November 30, 2009 request for reconsideration was submitted more than one year after the date
of the most recent merit decision of record on October 15, 2007, it was untimely. Consequently,
he must demonstrate clear evidence of error by the Office in denying his claim.16
In support of his reconsideration request, appellant asserted that he had been poorly
guided during the initial filing of his claim and that he had been unfairly denied access to copies
of forms and other documents in his file. On August 15, 2007 he stated that it was difficult to
determine when he first noticed his hearing loss. He alleged that he was exposed to excessive
noise for 8 to 12 hours a day, 7 days a week while in Viet Nam. On December 10, 2009 he
alleged that he was misguided and misinformed by the Office, and was unfairly treated as a
medically-retired civil service employee. On January 6, 2010 appellant again requested that his
claim be reconsidered. His letters do not establish error on the part of the Office. Appellant’s
claims that he was treated unfairly and that he was denied access to records are unsubstantiated.
Moreover, these contentions are not relevant to the issue decided by the Office, namely the
timeliness of his claim for occupational hearing loss. Therefore, they are insufficient to raise a
substantial question concerning the correctness of the Office’s decision.17
Appellant also submitted a copy of his June 27, 2007 letter to the Office. The letter
duplicates that previously received and considered by the Office which addressed appellant’s
claimed work-related noise exposure. As it does not address the timeliness issue, it is irrelevant
and does not establish error on the part of the Office.
On appeal, appellant reiterated his claims that he was treated unfairly, that he was denied
access to records and that the process for filing a reconsideration request was confusing and
13

Pete F. Dorso, 52 ECAB 424 (2001).

14

20 C.F.R. § 10.607(a).

15

Robert F. Stone, 57 ECAB 292 (2005).

16

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

17

See supra note 8 and accompanying text.

4

unclear. For the reasons stated, appellant’s arguments are insufficient to establish that the Office
erred in its October 15, 2007 decision.
The Board finds that the evidence submitted by appellant in support of his untimely
request for reconsideration does not constitute positive, precise and explicit evidence, which
manifests on its face that the Office committed an error. Therefore, he has failed to meet his
burden of proof to show clear evidence of error on the part of the Office.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 9, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2011
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

5


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
M.L., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS-STATIONS, Camp LeJeune, NC,
Employer
_________________________________________

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

Docket No. 12-1378
Issued: December 27, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 11, 2012 appellant filed a timely appeal from the May 18, 2012 Office of
Workers’ Compensation Programs’ (OWCP) schedule award decision. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the claim for a schedule award.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
ratable hearing loss entitling him to a schedule award.
FACTUAL HISTORY
On February 22, 2012 appellant, then a 63-year-old maintenance inspector, filed an
occupational disease claim alleging that he sustained noise-induced hearing loss due to factors of
1

5 U.S.C. § 8101 et seq.

his employment. He noted that he worked in the carpenter shop with power tools such as table
saws, planers, jointers, arm saws, skill saws, drills and air tools. Appellant also indicated that he
worked at a steam plant with coal pulverizers, air equipment and other noisy equipment.
By letters dated February 27, 2012, OWCP requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding his employment history, when he related his hearing loss to conditions of
employment and all nonoccupational exposure to noise. OWCP also requested that he provide
medical documentation pertaining to any prior treatment he received for ear or hearing problems.
It requested that the employing establishment provide noise survey reports for each site where
appellant worked, the sources and period of noise exposure for each location and whether he
wore ear protection.
In a February 22, 2012 letter, appellant described his work history. He indicated that he
started working for the employing establishment in 1981 as a grocery checker and thereafter
worked as a boiler tender, a wood worker, a maintenance mechanic, kitchen and bakery
equipment repairer and again as a maintenance mechanic. Appellant reported the type of noise
he was exposed to in each of his jobs. He noted that he did not have a history of hearing
problems and did not participate in any hobbies that could be related to hearing loss. Appellant
stated that he was informed in 1997 that he had a hearing loss as indicated by a hearing
conservation test conducted by the employing establishment. The employing establishment also
submitted results from various audiograms taken since November 8, 1984 and other documents
acknowledging that appellant might have an employment-related hearing loss.
By letter dated April 12, 2012, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Charles D. Beasley, a Board-certified
otolaryngologist, for a second opinion as to whether he sustained hearing loss causally related to
his federal employment. In an April 26, 2012 report, Dr. Beasley reported normal examination
findings. He diagnosed bilateral sensorineural hearing loss and opined that the hearing loss was
a result of appellant’s history of noise exposure in his federal employment. Dr. Beasley
recommended that appellant be evaluated to determine if hearing aids would be beneficial. An
audiogram conducted for Dr. Beasley on April 26, 2012 reflected testing at 500, 1,000, 2,000 and
3,000 Hertz (Hz) and showed the following decibel losses: 15, 5, 25 and 35 in the right ear and
15, 0, 35 and 40 in the left ear.
On May 14, 2012 an OWCP medical adviser reviewed Dr. Beasley’s findings and
determined that appellant had no ratable hearing loss. He did not recommend authorization of
hearing aids.
On May 18, 2012 OWCP accepted appellant’s claim for bilateral sensorineural hearing
loss. However, it also found that the hearing loss was not severe enough to be considered ratable
under the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(6th ed. 2009) (A.M.A., Guides).

2

LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations2 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides (6th ed. 2009) has been adopted by OWCP for evaluating
schedule losses and the Board has concurred in such adoption.3
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.4 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.5 The Board has also noted OWCP’s policy to round the calculated
percentage of impairment to the nearest whole number.6
ANALYSIS
The Board finds that OWCP properly denied appellant’s claim for a schedule award
because the evidence of record does not establish that he sustained a ratable hearing loss.
OWCP referred appellant’s claim to Dr. Beasley for a second opinion examination. In an
April 26, 2012 report, Dr. Beasley reported examination findings and diagnosed bilateral
sensorineural hearing loss as a result of appellant’s history of noise exposure in his federal
employment. An OWCP medical adviser concurred with Dr. Beasley’s findings, reviewed the
audiogram taken on behalf of Dr. Beasley, and concluded that appellant had no ratable hearing
loss that warranted a schedule award according to the A.M.A., Guides. Although OWCP
accepted appellant’s claim for bilateral sensorineural hearing loss, it denied his claim for a
schedule award.

2

20 C.F.R. § 10.404.

3

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

4

See A.M.A., Guides 250.

5

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

6

Robert E. Cullison, 55 ECAB 570 (2004); J.H., Docket No. 08-2432 (issued June 15, 2009). See Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (September 2010).

3

The Board finds that OWCP’s medical adviser correctly applied the proper procedures to
determine that appellant did not sustain a ratable hearing loss. An audiogram conducted on
April 26, 2012 reflected testing at 500, 1,000, 2,000 and 3,000 Hz and showed the following
decibel losses: 15, 5, 25 and 35 in the right ear and 15, 0, 35 and 40 in the left ear. These
thresholds total 80 and 90 decibels, respectively, for averages of 20 and 22.5 decibels. Because
these averages are below the fence of 25 decibels, appellant is deemed to have no impairment in
his ability to hear everyday sounds under everyday listening conditions.7 This does not mean
that appellant has no hearing loss, but only shows that the extent or degree of his hearing loss is
not sufficient to show a practical impairment in hearing according to the A.M.A., Guides. Thus,
the Board finds that OWCP’s medical adviser properly determined that appellant had no ratable
hearing loss and that OWCP properly denied appellant’s claim for schedule award.
On appeal, appellant contends that the amount of hearing loss listed in the decision is not
consistent with the amount of hearing loss he received from his physician. While OWCP
accepted that he sustained sensorineural hearing loss due to noise exposure from his federal
employment, the medical evidence establishes that he did not sustain a ratable impairment
according to the A.M.A., Guides. The A.M.A., Guides provides the formula for computing the
percentage of employment-related hearing loss and there is no provision for granting a schedule
award when the average of appellant’s hearing threshold falls below the fence of 25 decibels.
Appellant may request a schedule award or increased schedule award based on evidence of a
new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a ratable hearing loss entitling him to a schedule award.

7

See L.F., Docket No. 10-2115 (issued June 3, 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 27, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 09-1773
Issued: March 17, 2010

Case Submitted on the Record

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

JURISDICTION
On July 1, 2009 appellant filed a timely appeal from a May 28, 2009 merit decision of the
Office of Workers’ Compensation Programs and a June 19, 2009 decision denying further merit
review of her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established an injury in the performance of
duty on April 7, 2009; and (2) whether the Office properly denied appellant’s application for
reconsideration without merit review.
FACTUAL HISTORY
On August 11, 2009 appellant, then a 63-year-old modified rural carrier, filed a traumatic
injury claim (Form CA-1) alleging that on April 7, 2009 she sustained an injury in the
performance of duty. She stated that she was riding in an employing establishment vehicle and

her feet and several toes became white and numb. Appellant submitted an unsigned hospital
report dated April 7, 2009 with a diagnosis of Raynaud’s syndrome.
In an attending physician’s report (Form CA-20) dated April 24, 2009, Dr. Lawrence
Novak, a surgeon, diagnosed Raynaud’s syndrome. He checked a box “yes” that the condition
was employment related, stating “cold exposure.” Dr. Novak indicated that appellant should
avoid cold exposure below 45 degrees. He also submitted a duty status report (Form CA-17)
with a description of an April 7, 2009 incident stating that appellant was riding in a jump seat of
a vehicle and felt numbness in the feet.
By decision dated May 28, 2009, the Office denied the claim for compensation. It found
the medical evidence was insufficient to establish causal relation.
Appellant requested reconsideration of her claim. She discussed the medical evidence
and stated that it was not the riding in the LLV (long life vehicle) that caused the injury, but the
exposure to cold. In a narrative report dated April 24, 2009, Dr. Novak noted two episodes “this
winter” where appellant was exposed to cold. He reported that appellant had a painful left ring
finger in one episode and 7 of 10 toes numb and white in the other. Dr. Novak provided results
on examination and stated that appellant had “symptomatic Raynaud’s disease which is triggered
by cold weather.” He advised appellant to avoid these triggers.
By decision dated June 19, 2009, the Office denied merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides for the payment of compensation
for “the disability or death of an employee resulting from personal injury sustained while in the
performance of duty.”1 The phrase “sustained while in the performance of duty” in the Act is
regarded as the equivalent of the commonly found requisite in workers’ compensation law of
“arising out of and in the course of employment.”2 An employee seeking benefits under the Act
has the burden of establishing that he or she sustained an injury while in the performance of
duty.3 In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury, and generally this can
be established only by medical evidence.4

1

5 U.S.C. § 8102(a).

2

Valerie C. Boward, 50 ECAB 126 (1998).

3

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

4

See John J. Carlone, 41 ECAB 354, 357 (1989).

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The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.5 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.6
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.7
ANALYSIS -- ISSUE 1
Appellant alleged that on April 7, 2009 she was riding in an employing establishment
vehicle and her toes and feet became numb and white. The Office does not dispute the factual
allegation that she was riding in a vehicle. The Board notes that appellant did not provide other
details regarding the incident, such as the outside temperature and the duration of any exposure.
With respect to the medical evidence, an attending physician, Dr. Novak diagnosed
Raynaud’s syndrome and checked a box “yes” on causal relationship with “cold exposure”
without further explanation. The checking of a box “yes” in a form report, without additional
explanation or rationale, is not sufficient to establish causal relationship.8 Dr. Novak provided
only form reports that did not provide a complete history or a rationalized medical opinion on
causal relationship. In the absence of probative medical evidence, the Board finds appellant did
not meet her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,9 the Office’s regulations provide that a claimant may
obtain review of the merits of the claim by submitting a written application for reconsideration
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

6

Id.

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

9

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).

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that sets forth arguments and contains evidence that either: “(i) shows that [the Office]
erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument
not previously considered by [the Office]; or (iii) constitutes relevant and pertinent evidence not
previously considered by [the Office].”10 Section 10.608(b) states that any application for
review that does not meet at least one of the requirements listed in section 10.606(b)(2) will be
denied by the Office without review of the merits of the claim.11
ANALYSIS -- ISSUE 2
On reconsideration appellant disputed the Office’s determination regarding the
deficiencies in the medical evidence. She argued that an ambulance report form was dated and
the signature on the CA-17 was verified. The claim was not denied due to the lack of a date or
signature. The deficiency in the medical evidence was the lack of a rationalized medical opinion
on causal relationship. Appellant also stated that her claim was based on cold exposure, not
riding in a vehicle. As noted, her own statement on the claim form was limited to riding in a
vehicle and she did not provide a detailed description of her exposure to cold weather. The
Board finds that appellant did not show that the Office erroneously applied or interpreted a
specific point of law, or advance a relevant legal argument not previously considered.
Appellant did submit a new medical report from Dr. Novak. It is not, however, relevant
and pertinent to the medical issue presented. Dr. Novak had previously checked a box “yes” on
causal relationship between a diagnosed Raynaud’s syndrome and the employment incident. His
narrative report does not provide any new evidence regarding a rationalized medical opinion on
the issue. Dr. Novak briefly noted two episodes of cold exposure and stated that the Raynaud’s
was “triggered” by cold exposure, without further explanation. This is not new and relevant
evidence without a more detailed factual history and some attempt to explain how the diagnosed
condition was causally related to the April 7, 2009 incident. Appellant does not have to meet her
burden of proof in establishing the claim to require the Office to review the merits, but the
evidence must be new and relevant to the issue. The Board finds that appellant did not meet any
of the requirements of 20 C.F.R. § 10.606(b)(2) in this case.
On appeal, appellant reiterated her arguments and resubmitted evidence. Again, the
deficiency in the medical evidence was not due to a “misreading” of the evidence but rather the
lack of a rationalized medical opinion, based on a complete factual and medical history, on
causal relationship between a diagnosed condition and the April 7, 2009 incident.
CONCLUSION
The Board finds appellant did not meet her burden of proof to establish an injury in the
performance of duty on April 7, 2009.
The Board further finds the application for
reconsideration was not sufficient to warrant a merit review.

10

20 C.F.R. § 10.606(b)(2).

11

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 19 and May 28, 2009 are affirmed.
Issued: March 17, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 07-1681
Issued: December 12, 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 June 8, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs decision dated May 22, 2007 which denied her reconsideration request
on the grounds that it was untimely filed and failed to present clear evidence of error. Because
more than one year has elapsed between the most recent merit decision dated August 17, 2005
and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.
FACTUAL HISTORY
This is the second appeal in the present case. In an August 17, 2005 decision, the Board
affirmed the Office decision dated January 5 and 21, 2005. The Board found that appellant did
not establish that her emotional condition claim was timely filed under 5 U.S.C. § 8122(a) and

that the Office properly denied her request for reconsideration.1 The facts and the circumstances
of the case are set forth in the Board’s prior decision and incorporated herein by reference.2
Appellant submitted reports from Dr. Edvin J. Larson, a Board-certified family
practitioner, dated December 30, 2002 to December 2, 2006, who treated her for sinusitis,
bronchitis, upper respiratory infection, cellulites of the face, an insect bite and back pain. On
December 30, 2002 Dr. Larson noted appellant’s history of depression and on August 4, 2004 he
treated her for back pain and panic disorder. Also submitted was a report from Dr. Zenon
Bednarski, Board-certified in emergency medicine, dated April 27, 2004. He treated appellant
for arthralgia of multiple joints and abscess of the face.
On January 8, 2007 appellant filed a CA-2a, recurrence of disability claim. She
submitted a report from Dr. Tom Lawry, a psychologist, dated January 4, 2007, who noted that
appellant was treated for recurrent severe depression. Dr. Lawry advised that appellant
experienced symptoms consistent with post-traumatic stress disorder and panic attacks.
In a letter dated February 22, 2007, the Office advised appellant that her recurrence of
disability claim could not be processed. The Office noted that appellant’s original emotional
condition claim was denied by the Office on December 7, 2004 and this decision was affirmed
by the Board on August 17, 2005. Appellant was informed that she could not file a recurrence of
disability when the original claim was denied by the Office.
In an undated letter, received by the Office on April 5, 2007, appellant requested
reconsideration. She asserted that she established the merits of her claim but the Office denied
compensation based on the timeliness of the filing. Appellant indicated that she was on
medication at the time.
By decision dated May 22, 2007, the Office denied reconsideration on the grounds that
the request was not timely and that appellant did not present clear evidence of error by the
Office.

1

The Board found that appellant retired on January 16, 1999 and did not file her claim until August 11, 2004
which was over three years after she was last exposed to work factors.
2

Docket No. 05-881 (issued August 17, 2005).

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LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a)
provides that the Office will not review a decision unless the application for review is filed
within one year of the date of that decision.4
However, the Office will reopen a claimant’s case for merit review, notwithstanding the
one-year filing limitation, if the claimant’s application for review shows clear evidence of error
on the part of the Office in its most recent merit decision. To establish clear evidence of error, a
claimant must submit evidence relevant to the issue that was decided by the Office. The
evidence must be positive, precise and explicit and must be manifested on its face that the Office
committed an error.5
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office’s decision.6
Evidence that does not raise a substantial question concerning the correctness of the
Office’s decision is insufficient to establish clear evidence of error.7 It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion.8 This entails a
limited review by the Office of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of the Office.9 The Board makes an independent

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998).

5

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

6

Annie L. Billingsley, supra note 4.

7

Jimmy L. Day, 48 ECAB 652 (1997).

8

Id.

9

Id.

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determination as to whether a claimant has submitted clear evidence of error on the part of the
Office.10
ANALYSIS
In its May 22, 2007 decision, the Office properly determined that appellant failed to file a
timely application for review. It rendered its most recent merit decision on January 5, 2005
which was affirmed by the Board in a merit decision on August 17, 2005. Appellant’s request
for reconsideration was received on April 5, 2007 which was more than one year after
August 17, 2005. Accordingly, her request for reconsideration was not timely filed.
The Board finds that appellant has not established clear evidence of error on the part of
the Office. In a note received April 5, 2007, appellant asserted that she established the merits of
her claim but her claim was denied based on the timeliness of the filing. She indicated that she
was on medication at the time. The Board notes that, to the extent that appellant may be
asserting that her medication rendered her incompetent to file a timely claim, her assertion does
not establish clear evidence of error in the Office’s denial. The Board has held that it is the
employee’s burden to show that she is incompetent for a given period by submitting medical
evidence stating that her condition was such that she was not capable of filling out a form or of
otherwise furnishing the relatively simple information necessary for filing a claim and satisfying
the time limitation requirements.11 The medical reports of record do not show that appellant had
any medical condition that rendered her incapable of performing these or similar tasks such that
she would be considered incompetent within the meaning of the Act. Appellant submitted
reports from Dr. Larson dated December 20, 2002 to December 2, 2006, Dr. Bednarski dated
April 27, 2004 and Dr. Lawry dated January 4, 2007. These reports do not address the
underlying deficiency in the claim, the timeliness of her claim under 5 U.S.C. § 8122(a).
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 the Office’s decision. Consequently, the Office properly denied appellant’s
reconsideration request as her request does not establish clear evidence of error.

10

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

11

Linda J. Reeves, 48 ECAB 373 (1997).

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CONCLUSION
The Office properly determined that appellant’s request for reconsideration received on
April 5, 2007 was untimely filed and did not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the May 22, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 12, 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

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