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

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

Docket No. 10-1299
Issued: February 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 6, 2010 appellant, through her representative, filed a timely appeal from the
December 10, 2009 merit decision of the Office of Workers’ Compensation Programs. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant sustained a right knee injury in the performance of duty on
June 16, 2007.
FACTUAL HISTORY
On December 5, 2007 appellant, then a 47-year-old mail carrier, filed a claim for
compensation alleging that she injured her right knee in the performance of duty on June 16,
2007: “I was walking back to vehicle and my knee popped and couldn’t walk. When I finally
could move I couldn’t put pressure as it was so painful.” A witness confirmed that [appellant]
came to a sudden stop while walking to her postal vehicle after delivery: “Employee indicated to
me that she felt knee popped.”

Appellant identified the nature of her injury as a radial tear of the right medial meniscus,
a subchondral stress fracture of the right medial femoral condyle that appeared to progress to
osteonecrosis with slight collapse of the articular surface and large right knee joint effusion with
synovial proliferation. She did not stop work. Appellant advised the Office: “I was just walking
when it popped (right knee).”
The Office asked appellant to submit a physician’s opinion on how her employment
caused her diagnosed condition. Dr. Barry S. Ziring, the attending internist and an assistant
professor of medicine, saw appellant for bilateral knee degenerative joint disease years before the
June 16, 2007 incident at work. On December 10, 2007 he reported that appellant was walking
along to return to her truck when she heard a popping in her right knee, became acutely disabled
and developed effusion. Dr. Ziring stated that a September 19, 2007 imaging study was
consistent with an acute injury on June 16, 2007.
On January 24, 2008 the Office denied appellant’s claim for compensation. It found that
the medical evidence did not demonstrate that the claimed medical conditions were related to the
“established work-related event.” The Office noted that Dr. Ziring did not explain how the mere
act of walking to one’s vehicle could have caused or aggravated the diagnosed condition. Given
appellant’s history of preexisting knee problems, it considered it crucial that Dr. Ziring explain
how the June 16, 2007 incident at work caused or aggravated the diagnosed medical conditions.
Dr. Ziring objected that the requested explanation was impossible without imaging
studies the day before the injury and repeated the day of. Relying on observation evidence, he
found it clear that appellant injured herself on the stated day. Dr. Ziring added: “The
mechanism of injury appears to be normal shear forces as a result of walking superimposed on
underlying chronic pathology.”
Dr. Ziring found that the acute traumatic injury to appellant’s knee resulted in a torn
cartilage and a subchondral insufficiency fracture of the right femoral condyle. He identified
findings that supported his opinion: appellant’s imaging study changed from a previous study;
she had a witnessed injury with acute swelling and pain, which became acutely worse after the
injury; the mechanism of injury with a popping noise was consistent with an acute meniscal tear;
this was a witnessed event with acute resulting disability and her symptomatology prior to the
traumatic injury was entirely different than it became on the day of the injury. Dr. Ziring made
clear that appellant’s preexisting arthritis was not the cause of her current disability; it was her
injury, which occurred during work and which resulted in a traumatic injury to the knee.
In an April 12, 2006 treatment note, Dr. Ziring indicated that appellant was told her knee
was “bone on bone.” He diagnosed severe bilateral knee degenerative joint disease and stated
she might need knee replacement.
In a May 9, 2007 treatment note, Dr. Ziring indicated that appellant had pain behind her
right knee. He again noted she was “bone on bone.” Dr. Ziring diagnosed post right knee pain
and questionable “partial gastrocnemius.”
In a June 18, 2007 treatment note, Dr. Ziring indicated that appellant was walking and
suddenly felt pain behind her right calf. Findings included a tender right gastrocnemius and right

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lateral knee. There was no swelling and no edema. Dr. Ziring diagnosed a partial tear of the
right gastrocnemius muscle, recommended bed, ice and nonsteroidal anti-inflammatories and
released appellant to return as needed.
A July 12, 2007 treatment note indicated that appellant complained of pain in her right
lower thigh after injury with symptoms increasing gradually over several days. It was hard to
step down without calf symptoms and usually chronic knee pain. Findings included positive
swelling and tenderness medially above the right knee. The diagnosis was quadriceps sprain.
An x-ray report on July 26, 2007 noted “small knee joint effusion.” On July 31, 2007
Dr. Ziring found moderate right knee joint effusion, which he aspirated.
On December 23, 2008 Dr. Ziring reported there was no question in his mind based on
the events described by appellant that there was an acute injury to her right knee on
June 16, 2007. Appellant’s description of sudden pain followed by acute disability and swelling
was consistent with an acute injury. While it was clear she had underlying osteoarthritic
changes, Dr. Ziring noted there was diagnostic evidence during that time of a radial tear of the
medial meniscus.
Dr. Ziring again indicated that the Office’s denial appeared to be based on the lack of
imaging studies from immediately before and after the injury. There was no need to image the
knee before the injury, he explained, because appellant was asymptomatic at that point.
Dr. Ziring added that the events bore no similarity to the finding of May 9, 2007, at which time
there was no popping sound and she was able to bear weight on the same leg. He also stated,
“Radial tears are usually traumatic and not an overuse injury. This fits with patient’s twisting
motion which resulted in this injury on June 16, 2007.” Further, the osteonecrosis and stress
fracture shown on the imaging study supported post-traumatic injury. In summary, all of the
clinical facts of this case strongly support an acute traumatic injury to [appellant’s] knee which
occurred on June 16, 2007 while at work. Dr. Ziring strongly supported an additional view of
this case, as appellant remained in chronic partially disabling pain since the day of the injury.
On December 10, 2009 the Office reviewed the merits of appellant’s claim and denied
modification of its prior decision. It found that the medical evidence remained insufficient to
support that the diagnoses of radial tear of the medial meniscus, subchondral stress fracture of
the medial femoral condyle with osteonecrosis, and right knee effusion with synovial
proliferation were related to the claimant’s walking to her vehicle on June 16, 2007. The Office
noted that appellant never provided a history of twisting her knee. It observed that Dr. Ziring
never explained why he considered the meniscal tear to be a traumatic injury and not a
degenerative tear. Dr. Ziring did not address how other findings, such as the subchondral stress
fracture, could have occurred as a result of the underlying osteoarthritis. The Office stated that
“it would appear reasonable that the underlying osteoarthritis and weakened bone conditions
could have caused the popping and pain that the claimant experienced on June 16, 2007.” It
noted that Dr. Ziring was incorrect in assuming the denial was based on a lack of imaging studies
immediately before and after the claimed injury. The Office explained that he did not discuss
whether the finding on the latter imaging study represented the natural course of appellant’s
osteoarthritis condition.

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On appeal, counsel argues that the medical evidence establishes an aggravation of a
preexisting arthritic condition and further injury in the nature of a fracture of the right medial
femoral condyle and tear of the medial meniscus. He argues that Dr. Ziring provided medical
reasons for his conclusion that appellant suffered a twisting motion on June 16, 2007 and felt an
audible pop in the right knee, causing a traumatic injury. Counsel ask the Board to reverse the
Office’s December 10, 2009 decision or remand the case for further development.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.1 An
employee seeking benefits under the Act has the burden of proof to establish the essential
elements of her claim. When an employee claims that she sustained an injury in the performance
of duty, she must submit sufficient evidence to establish that she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. She must also
establish that such event, incident or exposure caused an injury.2
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient
doubt on a claimant’s statements. The employee has not met this burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.3
Causal relationship is a medical issue,4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,5 must be one of reasonable medical certainty,6
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.7

1

5 U.S.C. § 8102(a).

2

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

3

Carmen Dickerson, 36 ECAB 409 (1985); Joseph A. Fournier, 35 ECAB 1175 (1984). See also George W.
Glavis, 5 ECAB 363 (1953).
4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

Morris Scanlon, 11 ECAB 384, 385 (1960).

7

William E. Enright, 31 ECAB 426, 430 (1980).

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The mere fact that a condition manifests itself or is worsened during a period of
employment does not raise an inference of causal relationship between the two. Such a
relationship must be shown by rationalized medical evidence of causal relation based upon a
specific and accurate history of employment conditions which are alleged to have caused or
exacerbated a disabling condition.8
Medical conclusions unsupported by rationale are of little probative value.9 Medical
conclusions based on inaccurate or incomplete histories are also of little probative value.10
ANALYSIS
The Office accepted that appellant was walking in the course of her federal employment
on June 16, 2007, as she stated on her claim form, when her right knee popped. Appellant did
not file this form until December 5, 2007, the first question that arises whether her relatively late
account of events is accurate and supported by more contemporaneous evidence.
The most contemporaneous description of the injury comes from the June 18, 2007
treatment note of Dr. Ziring, the attending internist, who related the history provided by
appellant: “walking suddenly felt pain behind right calf.” He did not mention that her right knee
popped. Apart from some tenderness on the lateral aspect of the knee -- Dr. Ziring would later
diagnose medial injuries -- he did not find a right knee injury. There was no swelling and no
edema. Instead, Dr. Ziring diagnosed a partial tear of the right calf muscle and released
appellant to return as needed.
Indeed, Dr. Ziring would make no mention of a popping in appellant’s right knee until
after she filed her claim for compensation benefits on December 5, 2007. The December 5, 2007
claim form stands as the earliest reference to any popping in the right knee. One would
reasonably expect that, if appellant felt her right knee pop on June 16, 2007, she would mention
such a thing to her treating doctor two days later and he would record that history. It appears
from the record that she did not tell Dr. Ziring about her right knee popping until
December 10, 2007.
Because appellant’s late account of the injury materially differs from the history of injury
reflected in the contemporaneous medical evidence, the Board is not persuaded that she has met
her burden to establish that she experienced a specific event, incident or exposure occurring at
the time, place and in the manner alleged. Her claim finds some support from the December 5,
2007 witness statement, but that statement does not resolve the questions that arise from the
history appellant related to her treating physician.

8

Lawrence A. Meece, 28 ECAB 87 (1976).

9

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

10

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).

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Further, the Board finds that the medical opinion evidence is not sufficiently rationalized
to support the claimed injury. Dr. Ziring made a number of attempts to convince the Office that
appellant’s right knee condition arose in the course of her employment on June 16, 2007. None
of his efforts successfully reconciled his initial treatment notes. Dr. Ziring opined that appellant
tore her right medial meniscus and fractured her right medial femoral condyle on June 16, 2007.
To support that view, he observed that, when her right knee popped, she became acutely disabled
and developed effusion.
Appellant did not stop work. When she saw Dr. Ziring two days later, she related that
she was walking and suddenly felt pain behind her right calf. Dr. Ziring made no mention of a
popping in the right knee. On physical examination he found no effusion. Dr. Ziring diagnosed
a partially torn calf muscle, not a right knee injury. On July 12, 2007 he would diagnose a
quadriceps sprain.
It was not until July 26, 2007 that an x-ray report indicated a small knee effusion. Five
days later, Dr. Ziring described the effusion as moderate. This was a full month after the claimed
knee injury. Dr. Ziring did not explain how the history and findings in his post-incident
treatment notes squared with his opinion that appellant tore her right medial cartilage and
fractured her right femoral condyle while walking in the course of her employment on
June 16, 2007. He explained that the radial tear in her right medial meniscus fit with her
“twisting motion which resulted in this injury on June 16, 2007.” Like the late account of right
knee popping, there is no history of a twisting motion resulting in a right knee injury.
The Board finds that appellant has not met her burden of proof to establish fact of injury.
Inconsistencies in the evidence cast some doubt on the validity of appellant’s claim that she
sustained a right knee injury in the performance of duty on June 16, 2007. The medical opinion
evidence is not sufficiently rationalized to establish the critical element of causal relationship.
The Board will therefore affirm the Office’s denial of compensation benefits for the claimed
right knee injury.
Counsel argues that Dr. Ziring provided medical reasons for his conclusion that appellant
suffered a twisting motion on June 16, 2007 and felt an audible pop in the right knee, causing a
traumatic injury. As the Board indicated above, Dr. Ziring’s opinion is not well or fully
reasoned and is not based on a proper history. His opinion carries little probative value on the
issue of causal relationship.
Although the evidence does not establish a right knee injury on July 16, 2007, it does
support that appellant felt something when she walked back to her postal vehicle that day,
something that caused her to stop walking and start limping. As her medical examination two
days later supported a partially torn right gastrocnemius, the Board will remand the case to the
Office for further development and an appropriate final decision on whether appellant sustained
a right calf injury in the performance of duty on June 16, 2007.

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a right knee injury in the performance of duty on June 16, 2007. The case is remanded
for development regarding an alleged employment-related right calf injury.
ORDER
IT IS HEREBY ORDERED THAT the December 10, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed. The case is remanded for further action
consistent with this opinion regarding the right calf injury.
Issued: February 8, 2011
Washington, DC

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

Colleen Duffy Kiko, 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.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Fort Lauderdale, FL, Employer
__________________________________________

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

Docket No. 15-0760
Issued: October 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 18, 2015 appellant filed a timely appeal from an August 28, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days elapsed between the last merit decision dated August 15, 2013 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of appellant’s case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 28, 2014 nonmerit decision, OWCP received additional evidence.
Appellant also submitted new evidence on appeal. However, the Board may only review evidence that was in the
record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued
September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281
(2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal appellant argues that her reconsideration request was timely because she
mailed her response on June 7, 2014 and that an OWCP individual confirmed receipt of her
packet on August 18, 2014 for scanning. She further argued that the postmark date, U.S. Postal
Service receipts, and case law establish that her request for reconsideration was timely filed.
FACTUAL HISTORY
On June 17, 2013 appellant, then a 40-year-old customs and border patrol officer, filed a
traumatic injury claim alleging that on June 8, 2013 she sustained a severe headache, whiplash,
fatigue, and sleepiness from being in a motor vehicle accident. The employing establishment
controverted the claim because she was not in the performance of duty because her shift had
ended and she was on her way home.
By letter dated July 12, 2013, OWCP informed appellant that the evidence of record did
not establish her claim. It advised her of the type of medical and factual evidence required and
gave her 30 days to provide this information.
On July 29, 2013 OWCP received disability notes for the period June 10 to July 25, 2013
from Dr. Ron Weschel, a chiropractor, indicating that appellant was disabled for work beginning
June 8, 2013 until being released to return to work with restrictions on July 23, 2013 due to the
automobile accident.
In a July 31, 2013 attending physician’s report (Form CA-20), Dr. Weschel reported
multiple cervical and lumbar subluxations. Diagnoses included whiplash, lumbar sprain/strain,
and radiculitis and the box “yes” was checked regarding whether the diagnosis was employment
related. Dr. Weschel found appellant totally disabled for the period June 8 to July 22, 2013.
Appellant was released to light-duty work on July 23, 2013.
A June 8, 2013 Broward Health emergency room report noted that appellant had been
seen by Dr. Christopher D. Van Smith, an examining osteopath, for back pain. Appellant was
discharged on June 8, 2013 and the discharge summary reported a diagnosis of neck and back
pain.
In a June 10, 2013 report, Dr. Steven S. Greenberg, a treating Board-certified orthopedic
surgeon, related that appellant had been injured in a June 8, 2013 automobile accident and that
she was transported by ambulance to the emergency room for treatment at Broward General
Hospital.
He provided physical examination findings and reviewed diagnostic tests.
Dr. Greenberg diagnosed a cervical spine injury with associated pain, restriction of motion, and
spasm; lumbar injury with associated muscular pain, restriction of motion, and spasm; and
bilateral knee injuries with articular cartilage damage. He found appellant disabled for the
period June 10 to 17, 2013.
An August 1, 2013 magnetic resonance imaging (MRI) scan revealed C5-6 and C6-7 disc
bulges with thecal sac impingment and straightening of cervical lordosis consistent with spasm.
Dr. Weschel, in an August 7, 2013 report, provided a description of the June 8, 2013
automobile accident and noted that appellant was seen on June 11, 2013 for complaints of neck
and upper, mid and lower back pain; headaches; and right wrist pain. On physical examination
he found diffuse pain and swelling in the mid and low back and neck with joint pain, swelling
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and bilateral wrist tenderness with restriction on extension and flexion, and joint swelling.
Cervical, mid and lower back range of motion was very restricted and guarded. Dr. Weschel
diagnosed cervical, thoracic, and lumbar sprains/strains; cervical and lumbar radiculitis;
headaches; left ankle strain/sprain; right wrist strain/sprain; and bilateral knee strain/sprain.
By decision dated August 15, 2013, OWCP denied appellant’s claim finding that fact of
injury had not been established. It found that the record lacked any medical evidence with a
diagnosis causally related to the accepted June 8, 2013 incident.
On September 13, 2013 OWCP received a June 8, 2013 report from Broward Health
containing an x-ray noting a clinical impression of lumbosacral sprain.
On April 14, 2014 OWCP received an August 1, 2013 addendum to an Authorization for
Treatment (Form CA-16) from Dr. Weschel providing dates of treatment and diagnoses of
cervical, thoracic, and lumbar strains/sprains; cervical and lumbar radiculitis; headaches; right
wrist strain/sprain; left ankle strain/sprain; and bilateral knee strain/sprain.
On August 21, 2014 appellant requested reconsideration. In support of her request, she
submitted medical evidence which had previously been submitted and considered by OWCP.
The new evidence is set forth below.
In an August 22, 2013 disability certificate, Dr. Weschel released appellant to light duty
on August 22, 2013.
In progress reports/treatment notes, for the period September 24 to November 5, 2013,
Dr. Bruce S. Selden, a Board-certified otolaryngologist, provided a history of the automobile
accident and physical findings.
In disability notes dated September 20 and October 29, 2013, Dr. Harold Gregory Bach, a
treating Board-certified orthopedic surgeon, requested that appellant be excused from work. In
various disability notes, he indicated periods of disbility from September 23, 2013 to
March 20, 2014.
In September 23, 2013 chart notes, Dr. Roberto A. Moya, an examining Board-certified
orthopedic surgeon, diagnosed cervical sprain/strain, cervicalgia, cervical facet joint syndrome,
lumbar sprain/strain, lumbar pain, lumbar facet syndrome, hand and wrist pain, wrist/hand
tenosynovitis, knee pain, and knee internal derangement. He also completed a Florida Workers’
Compensation Uniform Medical Treatment Form dated September 23, 2013 which noted an
injury date of June 8, 2013 and opined that appellant was totally disabled from working at that
time.
On September 30 and October 1 and 3, 2013, Dr. Henry Glick, a treating osteopath
specializing in opthalmology, noted that appellant was involved in an automobile accident on
June 8, 2013, provided eye examination findings, and returned her to full duty on
October 2, 2013. He noted that appellant had been involved in an automobile accident on June 8,
2013 and had pain since then. Physical examination findings were provided.
October 4, 2013 MRI scan reports of both knees, left ankle, right wrist, and thoracic areas
noted that appellant was in a June 8, 2013 automobile accident and has had pain in these areas
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since the June 8, 2013 incident. The MRI scans revealed left and right knee anterior cruciate
ligament strain, left and right knee medial meniscus posterior horn tears, left knee posterior
cruciate ligament partial tear, right medial collateral ligament strain, T6-7 one millimeter broad
left posterolateral disc herniation with thecal sac compression, T7-8 and T8-9 broad-based
bulging annuli with thecal sac compression, left ankle joint effusion, left ankle anterior
talofibular ligament strain, carpi ulnaris tendon partial tear, and six-millimeter septated ganglion
cyst dorsal to the carpus.
In an October 9, 2013 report, Dr. Bach noted that appellant was involved in an
automobile accident on June 8, 2013 and was being seen for complaints of pain in her neck, mid
to low back, both knees, right wrist, and left ankle. His diagnoses included cervical disc
displacement, occipital neuralgia, lumbar sprain/strain, thoracic disc herniation, cephalalgia,
deranged medial mensicus, internal knee derangement, and hand and wrist tenosynovitis.
An October 14, 2013 Florida Workers’ Compensation Uniform Medical Treatment Form
noting an injury date of June 8, 2013 and noted that surgery was required by Dr. Moya. The
record also contains chart notes from Dr. Moya dated October 14, 2013 providing physical
examination findings. Based on review of the objective evidence and physical examination, he
recommended bilateral knee surgery.
In an October 20, 2013 disability note, Dr. Bach found that appellant was totally disabled
from work for the period October 20 to November 2013 and released her to return to light-duty
work with restrictions effective November 20, 2013. In a November 20, 2013 disability note, he
found her totally disabled the period November 20 to December 20, 2013 and released her to
return to light duty with restrictions on December 20, 2013.
In a November 18, 2013 report, Dr. Roy R. Casiano, who reported that appellant was
involved in an automobile accident on June 8, 2013, noted the physical treatment since the
accident, and provided physical examination findings. He related that she had been referred by
Dr. Selden for complaint of right clear rhinorrhea fluid.
A December 16, 2013 disability note signed by Anna M. Trzcinski, a registered nurse,
noted that appellant was a patient of Dr. Bach who was seen on December 16 and 20, 2013 and
was released to return to work on December 28, 2013.
On February 20, 2014 Dr. Bach noted that appellant was seen that day and requested that
she be excused from work.
By decision dated August 28, 2014, OWCP denied appellant’s request for reconsideration
as that it was untimely and failed to establish clear evidence of error on the part of OWCP. It
stated that her letter requesting reconsideration was not received with one year from the
August 15, 2013 decision. The request for reconsideration was not received until August 21,
2014 and, therefore, was untimely. OWCP further found that the evidence submitted with the
untimely request for reconsideration did not establish clear evidence of error and was not
sufficient to require OWCP to reopen appellant’s claim for consideration of the merits.

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LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.3
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.4
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, it must nevertheless
undertake a limited review to determine whether the application establishes clear evidence of
error.5 OWCP regulations and procedures provide that OWCP 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 OWCP.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.7 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 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.11 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.12

3

20 C.F.R. § 10.607(a).

4

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

5

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

6

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a)
(October 2011). OWCP procedures further provide 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 evidence of error. Id. at Chapter 2.1602.3(c).
7

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

8

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

9

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

10

See Leona N. Travis, supra note 8.

11

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

12

Leon D. Faidley, Jr., supra note 4.

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OWCP procedures were changed effective August 29, 2011. Section 10.607 of the new
regulations provides that the date of the reconsideration request for timeliness purposes was
changed from the date the request was mailed to the date the request was received by OWCP.13
ANALYSIS
The only decision before the Board on this appeal is that of OWCP dated August 28,
2014 in which it declined to reopen appellant’s case on the merits because the request was
untimely filed and did not show clear evidence of error. OWCP properly determined that she
failed to file a timely application for review. It issued a merit decision denying appellant’s claim
on August 15, 2013. OWCP received her request for reconsideration on August 21, 2014; thus,
the request was outside the one-year time limit.14 Consequently, appellant must demonstrate
clear evidence of error by OWCP in denying her claim for compensation.15
The Board also finds that appellant has not established clear evidence of error by OWCP.
The issue is medical in nature and, on reconsideration, appellant resubmitted Broward Health
reports dated June 8, 2013; reports and disability notes covering the period June 29 to August 7,
2013 from Dr. Weschel; June 20, 2013 reports and disability note from Dr. Greenberg, an
August 1, 2013 MRI scan. OWCP had previously considered this evidence and her, in
submitting this document, did not explain how this evidence was positive, precise, and explicit in
manifesting on its face that OWCP committed an error in denying her claim for compensation. It
is not apparent how resubmission of this evidence is sufficient to raise a substantial question as
to the correctness of OWCP’s decision.
Following OWCP’s August 15, 2013 decision, on reconsideration, appellant submitted
additional medical evidence. Form CA-16 reports from Dr. Weschel are not medical evidence.
Dr. Weschel is not a physician as defined under FECA as he did not diagnose a spinal
subluxation based on x-ray and therefore his reports are irrelevant to the underlying issue and do
not establish error in OWCP’s decision.16
Appellant also submitted reports and disability notes from Drs. Bach, Casiano, Glick,
Moya, and Selden. The report and chart notes from Dr. Moya provided physical examination
findings and recommend knee surgery. Drs. Casiano and Selden, in their reports, noted the
employment injury history and provided examination findings. Dr. Glick noted the employment
13

Supra note 3.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602(4)
(October 20112011). For decisions issued on or after August 29, 2011, the one-year period begins on the date of the
original decision, and the application for reconsideration must be received by OWCP within one year of the date of
its decision for which review is sought.
15

20 C.F.R. § 10.607(b); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005).

16

5 U.S.C. § 8101(2). Section 8101(2) of FECA provides that the term physician ... includes chiropractors only
to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine
to correct a subluxation as demonstrated by x-ray to exist. See also Mary A. Ceglia, 55 ECAB 626 (2004) (in
assessing the probative value of chiropractic evidence, the initial question is whether the chiropractor is a physician
as defined under 5 U.S.C. § 8101(2); a chiropractor is not considered a physician under FECA unless it is
established that there is a spinal subluxation as demonstrated by x-ray to exist).

6

injury history, provided examination findings, and related that appellant had been in pain since
the June 8, 2013 incident. The reports from Dr. Bach covered the period September 20, 2013 to
February 20, 2014, and documented periods of disability. Dr. Bach noted that appellant had
been involved in a June 8, 2013 automobile accident, and diagnosed cervical disc displacement,
occipital neuralgia, lumbar sprain/strain, thoracic disc herniation, cephalalgia, deranged medial
meniscus, internal knee derangement, and hand and wrist tenosynovitis.
Clear evidence of error is intended to represent a difficult standard. The new evidence
from appellant is not so positive, precise, and explicit that it manifests on its face that OWCP
committed an error. Consequently, the Board finds that none of the reports Drs. Bach, Casiano,
Glick, Moya, and Selden submitted on reconsideration are sufficient to raise a substantial
question as to the correctness of OWCP’s decision. No other medical evidence submitted by
appellant raises a substantial question as to the correctness of OWCP’s decision. Thus, appellant
has not established clear evidence of error by OWCP in its September 13, 2012 decision.
Appellant also submitted a December 16, 2013 disability note signed by Ms. Trzcinski, a
registered nurse. However, registered nurses are not physicians as defined under FECA, and
thus their opinions are of no probative value.17
The remaining evidence of MRI scans of both knees, left ankle, right wrist, and thoracic
areas is insufficient to establish that OWCP’s decision was erroneous or to raise a substantial
question as to the correctness of OWCP’s decision in denying appellant’s traumatic injury
claim.18
On appeal, appellant argued that OWCP erred in finding that her request was untimely as
the postmark clearly established that it had been mailed within the one-year period. As noted
above, OWCP changed its procedures effective August 29, 2011 to provide that for timeliness
purpose the date of reconsideration request is the date received by OWCP and not the date the
request was mailed. As appellant’s request was not received by OWCP until August 21, 2014,
her request for reconsideration was untimely.
The Board finds that the November 25, 2014 refusal of OWCP to reopen appellant’s
claim for further consideration on the merits of the claim under 5 U.S.C. § 8128(a) on the basis
that his request for reconsideration was not timely filed within the one-year time limitation
period set forth in 20 C.F.R. § 10.607 and did not show clear evidence of error was proper and
did not constitute an abuse of discretion.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

17

5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See B.B., Docket No. 09-1858 (issued April 16, 2010); Roy L. Humphrey, 57 ECAB 238 (2005).
18

L.D., Docket No. 14-132 (issued June 11, 2014).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 28, 2014 is affirmed.
Issued: October 13, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, JACKSON-EVERS
INTERNATIONAL AIRPORT, Jackson, MS,
Employer
__________________________________________

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

Docket No. 11-1806
Issued: February 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 1, 2011 appellant filed a timely appeal of the February 11, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error. Because more than 180 days elapsed between the most recent merit decision dated
June 8, 2009 to the filing of this appeal, the Board lacks jurisdiction to review the merits of this
case pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3.2

1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions 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). For final adverse OWCP decisions issued on or after November 19,
2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and failing to establish clear evidence of error.
On appeal, appellant contends that the medical evidence of record is sufficient to
establish that he sustained lumbar and cervical injuries causally related to his federal
employment.
FACTUAL HISTORY
On April 7, 2009 appellant, then a 51-year-old transportation security screener, filed an
occupational disease claim alleging that on April 1, 2009 he sustained bilateral shoulder, back
and neck injuries as a result of lifting bags at work.3 He stopped work on April 6, 2009.
In a June 8, 2009 decision, OWCP denied appellant’s claim, finding that the medical
evidence was insufficient to establish that the claimed conditions were causally related to the
accepted employment factors.
On February 3, 2010 appellant requested a telephone hearing. He submitted medical
reports and diagnostic test results which addressed his neck, back and urine conditions, disability
for work and medical treatment and the causal relationship between his conditions and the
established work duties. In a February 1, 2010 report, Dr. Orhan Ilercil, an attending Boardcertified neurologist, noted appellant’s continued cervical and lumbar complaints. He reviewed
diagnostic studies and recommended a cervical fusion due to neurological involvement.
Regarding appellant’s back condition, Dr. Ilercil stated that surgery was not necessary. Instead,
he recommended pain management. Dr. Ilercil advised that appellant was temporarily totally
disabled for work due to his cervical and lumbar conditions.
In a June 11, 2010 decision, OWCP’s Branch of Hearings and Review denied appellant’s
request for a hearing on the grounds that it was not timely filed. It found that his request for a
hearing was postmarked on February 3, 2010, more than 30 days after issuance of the June 8,
2009 decision. OWCP additionally denied appellant’s request for a hearing on the grounds that
the issue involved could be addressed equally well by requesting reconsideration and submitting
evidence not previously considered which established that he sustained a condition causally
related to the accepted factors of his federal employment.
By letter dated January 7, 2011, appellant requested reconsideration. He argued that he
continued to suffer from his conditions without medical treatment. Appellant also argued that he
continued to be disabled for work.
Appellant submitted a duplicate copy of Dr. Ilercil’s February 1, 2010 report. In reports
dated June 3 through November 22, 2010, Dr. Ilercil listed findings on physical examination. He
3

The record indicates that appellant filed a separate claim for compensation for another injury, but this claim was
not addressed by OWCP in its February 11, 2011 decision. The Board, therefore, will not address this claim in this
decision. See 20 C.F.R. § 501.2(c).

2

advised that appellant had lumbar and cervical spondylosis. Dr. Ilercil set forth his physical
restrictions and recommended surgical and psychological evaluations.
In reports dated February 17 through July 26, 2010 and an April 27, 2010 progress note,
Dr. Alfred G. Lyons, an attending Board-certified anesthesiologist, listed findings on physical
examination. He advised that appellant had posterior disc bulges at L2-3, L3-4 and L4-5 with a
posterior annular tear at L4-5, degenerative facet changes bilaterally at L4-5 and L5-S1, lumbar
facet joint arthralgia, chronic low back and bilateral lumbar radicular pain with bilateral lower
extremity radicular pain and without neurologic deficit and tension signs noted on physical
examination. Appellant also had displacement of the lumbar intervertebral disc without
myelopathy, hyperlipidemia, lumbar radiculopathy and sleep apnea. In reports dated March 18
and April 5, 2010, Dr. Lyons stated that he treated appellant’s lumbar disc bulges and radicular
pain with epidural steroid injections on those dates.
A July 26, 2010 laboratory report stated that appellant’s urinalysis test results were
negative with the exception of the presence of oxycodone.
In a February 11, 2011 decision, OWCP denied appellant’s January 7, 2011 request for
reconsideration, without a merit review, on the grounds that it was not timely filed and failed to
establish clear evidence of error in the last merit decision dated June 8, 2009.4
LEGAL PRECEDENT
Section 8128(a) of FECA5 does not entitle a claimant to a review of an OWCP decision
as a matter of right.6 OWCP, through its regulations, has imposed limitations on the exercise of
its discretionary authority under section 8128(a). Section 10.607(a) of OWCP’s implementing
regulations provide that an application for reconsideration must be sent within one year of the
date of OWCP decision for which review is sought.7
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.8

4

On appeal, appellant submitted new evidence. The Board cannot consider evidence that was not before OWCP
at the time of the final decision. See 20 C.F.R. § 501(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007);
Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). Appellant may resubmit this
evidence and legal contentions to OWCP accompanied by a request for reconsideration. 5 U.S.C. § 8128; 20 C.F.R.
§ 10.606.
5

5 U.S.C. § 8128(a).

6

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

7

20 C.F.R. § 10.607(a).

8

Id. at § 10.607(b).

3

To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.9 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.10 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 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.13
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP decision.14 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that OWCP abused its discretion in denying merit review in
the face of such evidence.15
ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. Its
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original OWCP decision.16 However, a right to reconsideration within one
year also accompanies any subsequent merit decision on the issues.17
The most recent merit decision in this case was OWCP’s June 8, 2009 decision, which
found that the medical evidence of record was insufficient to establish a causal relationship
between appellant’s back and neck conditions and the established work duties. As appellant’s
January 7, 2011 letter requesting reconsideration of the merits of his claim by OWCP was made

9

Nancy Marcano, 50 ECAB 110, 114 (1998).

10

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

11

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

12

Leona N. Travis, supra note 10.

13

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

14

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

15

Thankamma Mathews, 44 ECAB 765, 770 (1993).

16

20 C.F.R. § 10.607(a); see A.F., 59 ECAB 714 (2008).

17

D.G., 59 ECAB 455 (2008); Robert F. Stone, 57 ECAB 292 (2005).

4

more than one year after the June 8, 2009 merit decision,18 the Board finds that it was not timely
filed.
The Board further finds that appellant has not established clear evidence of error on the
part of OWCP. The duplicate medical report from Dr. Ilercil dated February 1, 2010 was
previously of record and considered by OWCP in its prior decision and does not establish clear
evidence of error the determination that appellant did not sustain an injury causally related to the
established work duties. Dr. Ilercil attributed appellant’s temporary total disability to his lumbar
and cervical conditions, but failed to provide a specific diagnosis for these conditions or a
medical opinion explaining how the accepted work duties caused the diagnosed conditions and
resultant disability. The Board finds that the medical report resubmitted by appellant does not
discharge his burden of showing clear evidence of error.
Dr. Lyons’ reports and progress note found that appellant had several lumbar conditions
including, posterior disc bulges at L2-3, L3-4 and L4-5 with a posterior annular tear at L4-5 and
chronic low back and bilateral lumbar radicular pain with bilateral lower extremity radicular pain
which he treated with epidural steroid injections. He did not address the relevant issue of
whether appellant sustained a medical condition causally related to the established work duties.
Similarly, the July 26, 2010 laboratory report did not provide a diagnosis or contain an opinion
on the work relatedness of the diagnosed condition. Evidence that is not germane to the issue on
which the claim was denied is insufficient to demonstrate clear evidence of error.19 Further, the
Board notes that pain is a symptom, not a compensable medical diagnosis.20 For the reasons
stated, the Board finds that Dr. Lyons’ reports and the laboratory report are insufficient to prima
facie shift the weight of the evidence in favor of appellant’s claim.
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 OWCP committed an error. Therefore, appellant failed to meet his
burden of proof to show clear evidence of error on the part of OWCP.
On appeal, appellant contended that the medical evidence established that he sustained
employment-related lumbar and cervical injuries. As discussed above, the medical evidence was
not sufficient to prima facie shift the weight of the evidence in his favor and raise a substantial
question as to the correctness of OWCP’s decision denying his occupational disease claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and failing to establish clear evidence of error.

18

Appellant had one year to request reconsideration by OWCP of its June 8, 2009 decision. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.6a (January 2004).
19

F.R., Docket No. 09-575 (issued January 4, 2010).

20

Robert Broome, 55 ECAB 339 (2004); C.F., Docket No. 08-1102 (issued October 10, 2008).

5

ORDER
IT IS HEREBY ORDERED THAT the February 11, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 21, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket Nos. 19-1090 &
20-0408
Issued: April 20, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 18, 2019 appellant, through counsel, filed a timely appeal from a March 27, 2019
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the
Appellate Boards assigned Docket No. 19-1090. However, counsel did not appeal from the
corresponding January 14, 2019 merit decision which was issued within 180 days of the docketing
of this appeal. Therefore, the Board has no jurisdiction to address the merits of the claim. Pursuant

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
On January 23, 2020 appellant, through counsel, filed a motion requesting that Docket Nos. 19-1090 and 20-0408
be consolidated as the appeals involved “similar issues and the same parties such that complete adjudication requires
that the appeals be considered together.” By order dated February 14, 2020, the Board granted appellant’s motion to
consolidate the appeals. Order, Docket Nos. 19-1090 and 20-0408 (issued February 14, 2020).

to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 4
On December 11, 2019 appellant, through counsel, filed a timely appeal from a
November 19, 2019 decision of OWCP. The Clerk of the Appellate Boards assigned Docket No.
20-0408. Pursuant to FECA5 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this decision.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for reconsideration
of the merits of his claim in its March 27, 2019 decision, pursuant to 5 U.S.C. § 8128(a); and
(2) whether OWCP had the authority to issue its November 19, 2019 decision.
FACTUAL HISTORY
On August 12, 2014 appellant, then a 51-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on August 7, 2014 he injured his left ankle while in the
performance of duty. OWCP accepted the claim for a left foot sprain. 6
On December 9, 2014 Dr. Ann O. Trauscht, Board-certified in family practice, diagnosed
a left foot sprain and found that appellant could resume his usual employment.
In a January 22, 2018 impairment evaluation, Dr. Neil Allen, a Board-certified internist
and neurologist, reviewed appellant’s history of an August 7, 2014 left ankle injury while at work.
On examination, he found intact sensation and full strength of the lower extremities. Dr. Allen
measured range of motion (ROM) for the right side, which he characterized as the affected side,
three times, and measured ROM for the left side, which he indicated was the unaffected side, one
time. Referencing Table 16-2 on page 501 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),7 he identified
the class of diagnosis (CDX) as a Class 1 ankle sprain/strain with mild motion loss, which yielded
a default value of five percent. Dr. Allen applied a grade modifier for functional history (GMFH)
of zero. He advised that a grade modifier for physical examination (GMPE) was not applicable as
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the March 27, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.
5

Supra note 3.

6

By decision dated July 13, 2017, OWCP denied appellant’s claim for a schedule award for a bilateral shoulder
condition, noting that it had only accepted a left foot sprain as employment related. Through counsel, he requested a
telephonic hearing, which was held on December 18, 2017. On December 18, 2017 counsel requested that OWCP
withdraw the request for a telephonic hearing. OWCP accepted the withdrawal of the hearing request on
December 19, 2017.
7

A.M.A., Guides (6th ed. 2009).

2

it was used to identify class and that a grade modifier for clinical studies (GMCS) was not
applicable as there were no studies to review. Dr. Allen found a net adjustment of one down from
the default value after using the net adjustment formula, which yielded four percent permanent
impairment of the left lower extremity.
On March 28, 2018 appellant filed a claim for a schedule award (Form CA-7).
On April 24, 2018 Dr. Ari Kaz, a Board-certified orthopedic surgeon serving as a district
medical adviser (DMA), noted that Dr. Allen had only provided one ROM measurement for the
left ankle, which he found to be the unaffected side. He thus found that his ROM measurements
were invalid under the A.M.A., Guides as he had failed to measure ROM three times. The DMA
indicated that the A.M.A., Guides did not provide an impairment rating for a foot sprain, and
therefore he utilized the CDX of ankle sprain using Table 16-2 on page 502 of the A.M.A., Guides.
He determined that appellant had no evidence of foot or ankle instability or a muscle or tendon
injury, which yielded a default value of zero. The DMA found a GMFH of zero as there was no
objective evidence of instability or deformity on examination and normal ROM. He further found
a GMPE of zero, noting that Dr. Allen had found abnormal ROM only on the right side and that
the measurements for ROM on the left side yielded no impairment. The DMA noted that there
was no GMCS available and that application of the net adjustment formula yielded no change from
the zero impairment rating.
By decision dated May 23, 2018, OWCP found that appellant had not met his burden of
proof to establish a ratable permanent impairment of his left lower extremity for schedule award
purposes.
On May 29, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
A telephonic hearing was held on November 14, 2018. Counsel noted that Dr. Allen had
referenced the right rather than the left ankle and indicated that she had requested that he submit
an addendum report. She asserted that, contrary to the DMA’s finding, Table 16-2 on page 501 of
the A.M.A., Guides provided an impairment rating for a foot strain.
On November 15, 2018 appellant submitted a report from Dr. Allen which indicated that it
was an addendum to his report of permanent impairment. The report noted a correction to his prior
report, indicating that he had obtained three ROM measurements of the left ankle and one ROM
measurement of the right ankle. In all other respects the addendum report was unchanged in
substance from his January 22, 2018 impairment evaluation report.
By decision dated January 24, 2019, OWCP’s hearing representative affirmed the May 23,
2018 decision.
Thereafter, appellant submitted a December 13, 2018 operative report from Dr. Joshua
Alpert, a Board-certified orthopedic surgeon, regarding his right rotator cuff repair. In a report
dated January 16, 2019, Dr. Alpert opined that appellant had sustained a rotator cuff tear causally
related to an August 7, 2014 employment injury. Appellant also submitted a progress report from
a physician assistant regarding his right shoulder rotator cuff repair.

3

On March 8, 2019 appellant, through counsel, requested reconsideration based on the
January 16, 2019 report from Dr. Alpert.
By decision dated March 27, 2019, OWCP denied appellant’s request for reconsideration
of the merits of his claim under section 8128(a).
On April 18, 2019 appellant, through counsel, timely appealed the March 27, 2019 OWCP
decision to the Board, which assigned Docket No. 19-1090. On October 24, 2019 appellant,
through counsel, filed a request for reconsideration with OWCP from the January 14, 2019 OWCP
hearing representative’s decision. The hearing representative had affirmed OWCP’s May 23, 2018
merit decision finding that appellant had not met his burden of proof to establish a ratable
permanent impairment of his left lower extremity for schedule award purposes. In support of the
reconsideration request, he submitted an October 2, 2019 report by Dr. Allen.
By decision dated December 11, 2019, OWCP denied modification of the January 14, 2019
OWCP hearing representative’s decision.
LEGAL PRECEDENT -- ISSUE 1
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. 8
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.9
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 10 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 11 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. 12
8

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
9

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
10

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Supra note 6 at Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Chapter 2.1602.4b.
11

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

12

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

4

ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim in its March 27, 2019 decision, pursuant to 5 U.S.C. § 8128(a).
By decision dated January 24, 2019, OWCP denied appellant’s claim for a schedule award
for a permanent impairment of the left lower extremity. On March 8, 2019 appellant timely
requested reconsideration. The underlying issue on reconsideration is whether the medical
evidence demonstrates a ratable permanent impairment. Thus, the Board must determine whether
appellant presented sufficient evidence or argument regarding the extent of permanent impairment
to warrant a merit review pursuant to 5 U.S.C. § 8128(a).13
The Board finds that appellant has not alleged or demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant
legal argument not previously considered. Consequently, he is not entitled to a review of the merits
of his claim based on the first and second above-noted requirements under section 10.606(b)(3). 14
The Board further finds that appellant has not provided relevant and pertinent new evidence
not previously considered to the issue of whether he is entitled to a schedule award of the left lower
extremity. Appellant submitted an operative report regarding his December 13, 2018 rotator cuff
repair, a surgical follow-up report dated December 17, 2018, and a January 16, 2019 report from
Dr. Alpert attributing appellant’s rotator cuff tear to his August 7, 2014 employment injury. The
issue, however, is whether he sustained a permanent impairment of the left lower extremity, not
his upper extremity, causally related to his August 7, 2014 employment injury. Evidence that does
not address the particular issue involved does not constitute a basis for reopening a case. 15 As
appellant did not provide relevant and pertinent new evidence, he is not entitled to a merit review
based on the third requirement under section 10.606(b)(3).16
The Board, accordingly, finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 17
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.

13

S.W., Docket No. 18-1261 (issued February 22, 2019).

14

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

15

R.C., Docket No. 17-1294 (issued December 20, 2018).

16

R.L., Docket No. 18-0175 (issued September 5, 2018).

17

See L.A., Docket No. 18-1226 (issue December 28, 2018) (when an application for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

5

LEGAL PRECEDENT -- ISSUE 2
The Board’s Rules of Procedure, at section 501.2(c)(3), provides:
“The Board and OWCP may not exercise simultaneous jurisdiction over the same
issue in a case on appeal. Following the docketing of an appeal before the Board,
OWCP does not retain jurisdiction to render a further decision regarding the issue
on appeal until after the Board relinquishes jurisdiction.”18 (Emphasis in the
original.)
Similarly, section 10.626 of OWCP’s regulations provides in pertinent part:
“While a case is on appeal to the ECAB, OWCP has no jurisdiction over the claim
with respect to issues which directly relate to the issue or issues on appeal. The
OWCP continues to administer the claim and retains jurisdiction over issues
unrelated to the issue or issues on appeal and issues which arise after the appeal as
a result of ongoing administration of the case….”19 (Emphasis in the original.)
ANALYSIS -- ISSUE 2
As was noted above, on December 11, 2019 appellant, through counsel, filed a timely
appeal from OWCP’s November 19, 2019 decision denying modification of its January 14, 2019
merit decision regarding a denial of a schedule award for claimed left lower extremity permanent
impairment. However, OWCP denied appellant’s request for reconsideration of the merits of the
schedule award denial on March 27, 2019. The Board assumed jurisdiction over the denial of the
reconsideration request of the underlying schedule award issue on April 18, 2019. As the Board
already had jurisdiction over the nonmerit denial of the schedule award issue as of April 18, 2019,
OWCP had no jurisdiction to issue its November 19, 2019 merit decision on the schedule award
as this is an issue “which directly relate[s] to the issue on appeal,”20 and changes the status of the
case on the appeal. 21 Consequently, the Board finds that the November 19, 2019 decision is null
and void.
Pursuant to 5 U.S.C. § 8149 and 20 C.F.R. §§ 501.2(c) and 501.3(a), the Board’s
jurisdiction is limited to the review of final adverse decisions of OWCP issued under FECA. As
the November 19, 2019 decision is null and void, the appeal assigned Docket No. 20-0408 does
not contain a final adverse decision over which the Board may properly take jurisdiction.
Therefore, the Boards finds that the appeal docketed as No. 20-0408 is dismissed.

18

20 C.F.R. §§ 501.2(c)(3). See also J.W., Docket No. 19-1688 (issued March 18, 2020); George Simpson, Docket
No. 93-0452 (issued February 18, 1994); Arlonia B. Taylor, 44 ECAB 591 (1993) (Member, Groom concurring in
part and dissenting in part); Douglas E. Billings, 41 ECAB 880 (1990).
19

20 C.F.R. § 10.626.

20

See id.; see also supra note 18.

21

See Douglas E. Billings, supra note 18.

6

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim in its March 27, 2019 decision, pursuant to 5 U.S.C. § 8128(a). The Board
further finds that OWCP did not have the authority to issue its November 19, 2019 decision and
therefore the appeal in Docket No. 20-0408 is dismissed.
ORDER
IT IS HEREBY ORDERED THAT the March 27, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
IT IS FURTHER ORDERED THAT Docket No. 20-0408 is dismissed as the
November 19, 2019 decision of the Office of Workers’ Compensation Programs is null and void.
Issued: April 20, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Janice B. Askin, 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
__________________________________________
K.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Westmont, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Donna Davis, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1101
Issued: March 23, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 17, 2015 appellant, through his representative, filed a timely appeal of an
October 21, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c)(1) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish disability on or
after June 27, 2001.
On appeal appellant’s representative argues that appellant was disabled due to his
accepted condition or in the alternative that there was a conflict of medical evidence regarding
appellant’s ability to perform full-time light-duty work. She further argued that the employing
establishment improperly terminated his employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On November 3, 1998 appellant, then a
37-year-old letter carrier, filed a traumatic injury claim (Form CA-1) alleging that he sustained
whiplash and low back pain as the result of a November 2, 1998 motor vehicle accident. He
returned to limited-duty work on November 4, 1998. Appellant began working less than eight
hours a day on November 12, 1998. OWCP accepted his claim on November 12, 1998 for
cervical and thoracic strains. Appellant underwent a magnetic resonance imaging (MRI) scan of
his cervical and lumbar spine on December 28, 1998. This scan demonstrated minimal
degenerative disc disease at C5-6 and C6-7 as well as left paramedian disc protrusion at L4-5
with narrowing of the left neural foramen. Appellant underwent a second lumbar MRI scan on
September 20, 1999 which continued to demonstrate a left disc protrusion at L4-5. On May 3,
2000 OWCP also accepted bulging L4-5 disc as a result of the November 2, 1988 employment
injury.
Appellant completed claims for compensation (Form CA-7) for the dates April 20, 2000
through May 11, 2001 and claimed that he was not engaged in any salaried employment,
commission, volunteer, or self-employment. OWCP authorized compensation payments for
April 20 through July 28, 2000 in the amount of $1,288.58. It authorized compensation benefits
from July 29 through August 25, 2000 on September 15, 2000.
The employing establishment offered appellant a limited-duty assignment on August 7,
2000 which required 4 hours a day of standing, sitting, and walking for 30 minutes each,
carrying, lifting, and pulling up to 15 pounds as well as twisting, reaching, pushing, bending, and
climbing as restricted by pain. On August 22, 2000 it noted that he cased mail for four to six
hours a day.
On August 29, 2000 Dr. Ishver H. Desai, an internist, described appellant’s history and
reviewed his MRI scans. He opined that appellant’s degenerative disc disease at C5-6 and C6-7
was not preexisting but was directly related to the disc injury during the work-related accident.
Dr. Desai advised that it was common to have degenerative disc disease after a disc injury. He
found that appellant was not capable of lifting or carrying more than five pounds for more than
five minutes at a time. Dr. Desai opined that appellant could work a sitting job four hours a day
with hourly breaks to stretch and walk.
OWCP authorized wage-loss compensation for 32 hours of leave without pay from
October 7 through 20, 2000. It also authorized compensation benefits from December 30, 2000
through January 12, 2001 on February 2, 2001 and from February 17 through March 2, 2001.
Appellant’s field nurse completed a November 6, 2000 report noting that appellant was in
a September 13, 2000 nonwork-related motor vehicle accident. She reported that he continued
working four to five hours a day and that his physician had not lifted restrictions. The field nurse
completed a report on January 4, 2001 and indicated that appellant had been working four to five
hours a day, five days a week for the past two years. Dr. Desai completed a Form CA-17 on
April 17, 2001 and indicated that appellant could work four hours a day.

2

On April 18, 2001 the employing establishment offered appellant a limited-duty full-time
letter carrier position. Appellant accepted this full-time light-duty position on May 8, 2001. He
was to stand, walk, and sit for no more than four hours each and to lift up to no more than five
pounds eight hours a day.
On May 18, 2001 appellant participated in an interview with a postal inspector. He
reported during that interview that he played music and had a studio in his home. Appellant
indicated that he played bass guitar on the weekends and recorded music for other people
occasionally. He noted that his business name was Sonic Crave.
Appellant completed a Form CA-7 on May 31, 2001 covering the period May 5
through 18, 2001. He reported:
“I have made money from my musician hobby in which I recently inc[orporated]
namely Sonic Crave Music, Inc. This section was never explained to me, so
perhaps you can give me specifics. I had a meeting with two ladies from the
Great Lakes Injury Compensation, and one lady told me there’s a line on Form
CA-7 I should fill out. This is very unclear to me and I am overwhelmed with the
compensation paperwork….”
Appellant completed an additional Form CA-7 on June 12, 2001 requesting compensation from
May 19, to June 1, 2001 and indicated that he had a “musical hobby.”
In a letter dated June 29, 2001, the employing establishment issued appellant an
emergency placement in an off-duty status effective June 27, 2001. It found that he had failed to
provide correct earning information on his Form CA-7, that his explanation was unacceptable,
and that his actions inappropriate.
OWCP received a September 4, 2001 investigative report from the U.S. Postal Inspection
Service, Northern Illinois Division. A postal inspector noted that while receiving wage-loss
compensation from OWCP appellant was employed as a member of the music group, Bang,
beginning in March 2000. Appellant related that he played music on weekends and that he
considered this to be a hobby. Ronald R. Rando, leader of Bang indicated that appellant joined
the band on March 1, 2000 and that appellant received $8,885.00 in 2000 and $2,500.00 in 2001.
The postal inspector interviewed Dr. Desai on August 14, 2001. Although Dr. Desai
refused to offer his medical opinion on appellant’s ability to work eight hours a day prior to
August 14, 2001, he determined that appellant could attempt to work eight hours a day with
frequent breaks and the same lifting restrictions.
On November 9, 2001 the employing establishment provided appellant with a notice of
removal on the basis of unacceptable conduct as evidenced by his failure to disclose pertinent
information on his Form CA-7. It found that appellant was in violation of the Employee and
Labor Relations Manual provisions regarding standards of conduct, unacceptable conduct and
behavior, personal habits, and loyalty.
In a letter dated February 8, 2002, OWCP made a preliminary finding of overpayment in
the amount of $10,594.25 as appellant had forfeited his compensation benefits from March 2000
3

to June 2001. Appellant requested a prerecoupment hearing on March 1, 2002. In a note dated
March 14, 2002, Dr. Desai indicated that appellant’s pain had increased. He recommended that
appellant attempt a trial return to work four hours a day with restrictions and gradually attempt to
return to eight hours. Dr. Desai opined that appellant would be unable to return to work full time
even with restrictions. By decision dated January 17, 2003, the hearing representative remanded
appellant’s claim for a formal forfeiture decision and development of the medical evidence.
OWCP referred appellant for a second opinion evaluation with Dr. Leonard R. Smith, a
Board-certified orthopedic surgeon, on February 27, 2003.
Dr. Smith completed a report on March 27, 2003 and provided a history of injury as well
as medical treatment. He diagnosed soft tissue injuries of the cervical spine and bulging disc at
L4-5. Dr. Smith opined that appellant could perform the duties of a full-time letter carrier with
the exception of heavy lifting. He reported no restrictions on sitting, standing, walking,
kneeling, bending, twisting, pushing, pulling, or operating a vehicle eight hours a day.
By decision dated May 2, 2003, OWCP found that appellant forfeited his entitlement to
compensation from March 2000 to June 2001 because he had failed to report earnings pursuant
to 5 U.S.C. § 8106(b). It found that appellant knowingly omitted his outside earnings on his
Form CA-7s from March 2000 to June 2001 and forfeited all compensation for that period.
In a May 2, 2003 letter, OWCP issued a preliminary finding that a $10,594.25
overpayment occurred for the period March 2000 to June 2001 pursuant to section 8106(b) due
to appellant’s failure to report earnings from outside employment on CA-7 forms. It found that
he was at fault in creating the overpayment. OWCP informed appellant that, if he disagreed with
the preliminary finding, he could, within 30 days, submit evidence or argument to OWCP, or
request a prerecoupment hearing with the Branch of Hearings and Review.
On May 27, 2003 appellant requested a prerecoupment hearing before an OWCP hearing
representative on the issue of fault and eligibility for waiver of recovery at the overpayment.
At the hearing on January 21, 2004, appellant testified that he began playing in the band
every weekend and that he had previously played in several bands both with and without
compensation, that he had reported any earnings to the Internal Revenue Service, but did not
consider this a job.
In a May 12, 2004 decision, the hearing representative affirmed OWCP’s decisions
regarding forfeiture, overpayment and fault for the period March 2000 through June 2001 in the
amount of $10,594.25. He concluded that this amount was due and payable.
The Board reviewed the May 12, 2004 OWCP hearing representative’s decision on
January 12, 2006 and found that the language in the CA-7 forms of record was not of such a
specific nature so as to reasonably put appellant on notice that he had to report all earnings, no
matter the source. The Board found that OWCP failed to meet its burden of proof to establish
forfeiture of his right to compensation for the periods claimed, and that OWCP erred in

4

determining that an overpayment of compensation was created. It reversed OWCP’s May 12,
2004 decision.2
On April 13, 2005 the United States Attorney declined to pursue appellant’s prosecution
due to the combination of the low amount, the fact that appellant was ordered to repay the
amount, and the fact that the civil division was pursuing damages. The civil division also
dismissed the action.
Following the Board’s January 12, 2006 decision, Dr. Desai completed reports on
February 27, 2006 and January 31, 2008 and continued to support residuals of appellant’s
November 2, 1998 employment injury. He opined that appellant’s pain had not improved since
1998, that appellant had significant disability, and that appellant’s work restrictions were lifting
no more than 5 to 10 pounds working 4 hours a day and gradually attempting to increase his
work capacity. Dr. Desai concluded that he doubted that appellant would be able to work full
time without limitations.
On May 3, 2011 appellant filed a Form CA-7 requesting wage-loss compensation from
June 30, 2001 through May 3, 2011. Appellant filed a separate Form CA-7 on May 28, 2011
requesting a schedule award.
In a letter dated June 20, 2011, OWCP requested additional medical evidence in support
of appellant’s claim for a schedule award.
Appellant submitted notes from Dr. Desai dated June 30, August 8 and 18, September 1
and 22, October 17, November 14, and December 12, 2011 addressing his low back pain.
Dr. Desai opined that this condition was work related due to an automobile accident. He
indicated that appellant was employed part time and diagnosed cervical and lumbar myelopathy
as well as unspecified thoracic or lumbar neuritis/radiculopathy.
On January 9, 2012 Dr. Desai provided a treatment note diagnosing disc disorder with
myelopathy in the cervical and lumbar spines as well as radiculopathy. He completed similar
notes on February 6, March 5 and 29, April 24, May 24, June 21, July 19, August 16,
September 17, October 30, 2012. Dr. Desai completed an attending physician’s report (Form
CA-20) dated September 26, 2012 and diagnosed degenerative disc disease, disc bulge, disc
herniation, and lumbosacral deconditioning syndrome. He completed a duty status report (Form
CA-17) dated October 9, 2012 and indicated that appellant could work four hours a day with
restrictions on lifting of 10 pounds.
Dr. Desai completed a narrative report on October 30, 2012 and attributed appellant’s
ongoing symptoms of pain in the lower back radiating down to the left leg and neck pain
radiating down the right arm to his November 2, 1998 employment-related automobile accident.
He found that appellant’s condition had not improved since 1998. Dr. Desai opined that
appellant could return to work on a trial basis with limitations including lifting no more than 10
pounds, and standing and walking less than two hours a day. He continued to provide his
treatment notes on December 11, 2012 and January 11, 2013. Dr. Desai diagnosed backache
2

Docket No. 05-1500 (issued January 12, 2006).

5

unspecified and opined that this condition was related to appellant’s work injury when his car
was rear ended by another. He indicated that appellant was working part time.
By decision dated February 27, 2013, OWCP denied appellant’s claim for a schedule
award as he had failed to establish permanent impairment due to his accepted employment
injuries. Appellant requested an oral hearing from OWCP’s Branch of Hearings and Review.
He withdrew this request on May 28, 2013.
Dr. Desai continued to submit his treatment notes and requested an additional MRI scan.
Appellant submitted a copy of his February 25, 2002 grievance settlement indicating that
his emergency placement in off-duty status was mutually agreed to be held in abeyance pending
the disposition of charges brought by the Office of the United States Attorney.
By decision dated December 4, 2013, OWCP denied appellant’s claim for compensation
from June 27, 2001. It found that the issue was whether he continued to be totally disabled for
all employment as a result of his November 2, 1988 work injury and whether his entitlement to
wage-loss compensation should continue as a result of justifiable administration actions leading
to removal by the employing establishment. OWCP found that appellant had been officially
removed from federal employment due to unacceptable conduct on September 23, 2005,
specifically due to his failure to disclose pertinent information on his Form CA-7s. OWCP
further found that appellant had accepted a full-time light-duty position on May 8, 2001 and that
the medical evidence indicated that he could work eight hours a day with restrictions. On
November 15, 2013 the employing establishment confirmed that the May 8, 2001 job offer
would have remained available had he not been suspended and removed for unacceptable
conduct. OWCP found that appellant’s removal was justifiable termination and had no bearing
on the accepted work injury.
Appellant requested an oral hearing on December 29, 2013. He testified at the hearing on
July 29, 2014. Dr. Desai provided an August 5, 2014 report and opined that appellant’s current
back and lower extremity conditions as well as his neck and right arm conditions were due to his
November 2, 1998 employment injury. He further indicated that appellant had limitations
including lifting no more than 5 to 10 pounds. Dr. Desai opined that appellant could work four
hours a day with sitting for 30 minutes, walking and standing for less than two hours a day each,
and performing only occasional stooping. He noted that appellant required frequent breaks.
By decision dated October 21, 2014, an OWCP hearing representative found that
appellant had not established any period of total disability on or after June 27, 2001 due to his
accepted employment injury. She found that the employing establishment made appellant a fulltime job offer with Dr. Desai’s April 17, 2001 restrictions on April 18, 2001 and that appellant
accepted this position on May 8, 2001. The hearing representative concluded that there was
insufficient medical evidence establishing that appellant was totally disabled as of June 27, 2001
or at the time of his termination by the employing establishment, to establish his entitlement to
wage-loss compensation benefits. She relied on Dr. Smith’s March 27, 2003 second opinion
report.

6

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.3 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.4 Disability is, thus, not synonymous with physical impairment which may or may not
result in an incapacity to earn wages.5 An employee who has a physical impairment causally
related to his or her federal employment, but who nonetheless has the capacity to earn the wages
he or she was receiving at the time of injury, has no disability and is not entitled to compensation
for loss of wage-earning capacity.6 When, however, the medical evidence establishes that the
residuals or sequelae of an employment injury are such that, from a medical standpoint, they
prevent the employee from continuing in his employment, he is entitled to compensation for any
loss of wages.7
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence
establishes that he or she can perform the limited-duty position, the employee has the burden of
proof to establish a recurrence of total disability and that he cannot perform such limited-duty
work. As part of this burden, the employee must show a change in the nature or extent of the
injury-related condition or a change in the nature and extent of the light-duty job requirements.8
When a light-duty position is withdrawn, it is appellant’s burden to establish that any increase in
disability for work is due to the accepted injury, rather than another cause.9
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.10 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurt too much to work, without objective findings of
disability being shown, the physician has not presented a medical opinion on the issue of
3

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
5

Roberta L. Kaaumoana, 54 ECAB 150 (2002); C.S., Docket No. 08-2218 (issued August 7, 2009).

6

Merle J. Marceau, 53 ECAB 197 (2001); C.S., id.

7

Id.

8

See John I. Echols, 53 ECAB 481 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

9

C.S., supra note 5.

10

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

disability or a basis for payment of compensation.11 The Board will not require OWCP 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
employees to self-certify their disability and entitlement to compensation.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability on
or after June 27, 2001.
Appellant returned to work on November 4, 1998 and continued to perform light-duty
work until June 27, 2001. On that date, he stopped work as the employing establishment
withdrew his light-duty assignment on the basis that he had provided inaccurate earnings
information on his Form CA-7s which were found to be inappropriate. Appellant has alleged
that his light-duty work was improperly withdrawn and that he, therefore, is entitled to
compensation benefits from June 27, 2001.
OWCP regulations provide that a claimant sustains a recurrence of disability when a
light-duty assignment made specifically to accommodate an employee’s physical limitations due
to his or her work-related injury or illness is withdrawn, except when such withdrawal occurs for
reasons of misconduct, nonperformance of the job duties, or a reduction in force.13 The Board
has held that when a claimant stops work for reasons unrelated to the accepted employment
injury, there is no disability within the meaning of FECA.14 In this case, the evidence establishes
that appellant’s light-duty position as a modified letter carrier was withdrawn by the employing
establishment. Therefore, appellant has the burden to establish that the withdrawal was due to the
accepted injury, rather than to another cause.
OWCP accepted appellant’s claim for cervical and thoracic strains as well as bulging disc
L4-5. Appellant returned to light-duty work on November 4, 1998 and continued to perform
light-duty work within his restrictions. On May 8, 2001 he accepted a light-duty letter carrier
position working eight hours a day standing, walking, and sitting for up to four hours each.
Appellant was to lift up to five pounds. The record does not establish that he stopped work until
June 27, 2001 when the employing establishment issued an emergency placement in an off-duty
status and withdrew his light-duty position. The employing establishment terminated appellant’s
employment on November 9, 2001 on the basis of unacceptable conduct as evidenced by his
failure to disclose pertinent information on his Form CA-7. It determined that he was in
violation of the Employee and Labor Relations Manual provisions regarding standards of
conduct, unacceptable conduct and behavior, personal habits, and loyalty.
11

Id.

12

Id.

13

See 20 C.F.R. § 10.5(x).

14

See John I. Echols, supra note 8; John W. Normand, 39 ECAB 1378 (1988). Disability is defined to mean the
incapacity because of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total. See 20 C.F.R. § 10.5(f).

8

On appeal, appellant’s representative argues that because the Board reversed OWCP’s
finding of forfeiture which was based on appellant’s failure to disclose pertinent information on
his Form CA-7’s, appellant’s position was improperly withdrawn and he, therefore, is entitled to
compensation benefits. This argument is without merit. The Board has no jurisdiction over the
employing establishment’s decision regarding termination of appellant’s employment. There is
no evidence in the record supporting that the employing establishment terminated appellant due
to his work-related condition. The record supports that the employing establishment terminated
appellant due to his reporting failures on his Form CA-7’s. The issue in this case is whether
appellant was terminated by the employing establishment for reasons causally related to the
accepted injury. The preponderance of the evidence establishes that appellant was terminated for
reasons that were not related to his accepted condition.15
Appellant has also submitted medical evidence in support of his claim for periods of total
disability on or after July 21, 2001. He submitted a series of medical reports from Dr. Desai
supporting partial disability for work. Dr. Desai did not provide any evidence, in the form of
medical rationale explaining that appellant was totally disabled due to his accepted conditions for
any period of time after July 21, 2001. These reports do not support appellant’s claim for any
period of total disability on or after July 21, 2001 or a material change in the nature and extent of
appellant’s injury-related condition resulting in total disability for work.
Dr. Smith, OWCP’s second opinion physician, completed a report on March 27, 2003
describing appellant’s history of injury as well as his medical treatment. He diagnosed soft
tissue injuries of the cervical spine and bulging disc at L4-5. Dr. Smith opined that appellant
could perform the duties of a full-time letter carrier with the exception of heavy lifting. He
reported no restrictions on sitting, standing, walking, kneeling, bending, twisting, pushing,
pulling, or operating a vehicle eight hours a day. This report does not support appellant’s
allegations of periods of total disability due to his accepted employment injury which occurred
on or after July 21, 2001.
Appellant has failed to establish by the weight of the reliable, probative, and substantial
evidence, a change in the nature and extent of the injury-related condition resulting in his
inability to perform the duties of his modified employment, or to provide rationalized opinion
evidence establishing that he was physically disabled as of July 21, 2001. He has also failed to
establish that his light-duty job was withdrawn for reasons related to his accepted condition.
Accordingly, the Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established disability on or after July 21, 2001.

15

John W. Normand, supra note 14; Major W. Jefferson, 47 ECAB 295 (1996); C.S., supra note 5.

9

ORDER
IT IS HEREBY ORDERED THAT the October 21, 2014 decision the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10