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

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

Docket No. 18-0716
Issued: December 10, 2018

Case Submitted on the Record

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

JURISDICTION
On February 16, 2018 appellant filed a timely appeal from a September 25, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated August 2, 2016, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the September 25, 2017 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 9, 2013 appellant, then a 50-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed a left ankle/foot condition while in the
performance of duty on or about October 15, 2013. She attributed her left tarsal tunnel syndrome
and capsulitis to driving her privately-owned vehicle (POV) 4 - 5½ hours a day while delivering
mail along her rural route. Appellant noted that she first became aware of her claimed condition
on October 15, 2015 and first realized its relation to her federal employment on November 5, 2013.
She stopped work on November 21, 2013.
After initially denying the claim on February 4, 2014, by decision dated July 2, 2014,
OWCP accepted appellant’s claim for left enthesopathy of the ankle and tarsus and left tarsal
tunnel syndrome.3
On September 4, 2014 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period November 22, 2013 to August 22, 2014. OWCP paid wage-loss compensation for
total disability from November 30, 2013 to January 28, 2014 and for partial disability from
January 29 to April 21, 2014. Appellant continued to file claims for wage-loss compensation for
continuing disability.
Appellant continued to receive medical treatment from Dr. Dennis Smith, a podiatrist. In
disability notes dated August 26 to October 27, 2014, he indicated that appellant was unable to
return to work.
By development letter dated September 30, 2014, OWCP advised appellant that it received
her claims for wage-loss compensation and informed her that additional evidence was needed in
support of her claims. It provided her a questionnaire for completion and requested medical
evidence in support of her claim. OWCP afforded appellant 30 days to submit the requested
information.
OWCP received reports by Dr. Smith dated November 22, 2013 to October 27, 2014
regarding treatment for increased pain in her left heel. Dr. Smith provided examination findings
and diagnoses of capsulitis, tarsal tunnel syndrome, pain in limb, and unspecified fasciitis. In duty
status reports (Form CA-17) dated May 5 to December 8, 2014 and disability notes dated
October 27, 2014 to January 5, 2015, he indicated that appellant was unable to return to work.
Appellant was also treated by Dr. Louis Teodori, an osteopath and Board-certified
neurologist. In reports dated November 11, 2014 to January 12, 2015, Dr. Teodori related
3

The accepted employment factors included repetitive walking and standing on concrete floors for five to seven
hours per day and “repetitive driving of [appellant’s] personal vehicle … with [her] left foot in an awkward
position….”

2

appellant’s complaints of left foot and heel pain, swelling, and painful range of motion. He
provided examination findings and diagnosed foot pain. In a December 4, 2014 note, Dr. Teodori
opined that appellant could not return to work until her appointment on January 12, 2015. In a
December 9, 2014 electromyography and nerve conduction velocity (EMG/NCV) study, he
reported an unremarkable study.
In a December 12, 2014 addendum report, Dr. Smith related that appellant’s pain in her
left heel and foot was present prior to her nonwork-related surgery on April 22, 2014. He indicated
that she did not reinjure the area while in her postoperative period and that she was released from
her physician on June 21, 2014.
On January 24, 2015 appellant returned to work part time.
In January 5 to April 6, 2015 reports, Dr. Smith indicated that he continued to treat
appellant for pain in her left ankle and heel. He provided examination findings of pain on direct
palpation of the insertion of the medial band of the plantar fascia of the left heel. Dr. Smith
diagnosed capsulitis, tarsal tunnel syndrome, pain in limb, and fasciitis. He recommended that
appellant continue working modified duty and provided duty status reports (CA-17 forms) with
specified restrictions.
Dr. Smith further elaborated in a January 14, 2015 report that appellant continued to have
left enthesopathy, left tarsal tunnel syndrome, and plantar fasciitis. He opined: “This may have
been caused by her altered gait due to pain and compensating for that pain created by her left
enthesopathy and tarsal tunnel syndrome.”
OWCP referred appellant, along with a statement of accepted facts (SOAF) and a copy of
the medical record, to Dr. Alan Brecher, a Board-certified orthopedic surgeon, for a second
opinion examination to determine whether she continued to have residuals and remained disabled
due to her accepted left foot conditions and whether appellant’s diagnosed plantar fasciitis was
causally related to her employment.
In a March 17, 2015 report, Dr. Brecher reviewed appellant’s history, including the SOAF,
and discussed appellant’s medical records. Upon physical examination of appellant’s left foot, he
observed some tenderness along the anterior fibular ligament and minimal tenderness with
palpation in the medial cord of the plantar fascia. Dr. Brecher reported that according to an EMG
appellant no longer had tarsal tunnel syndrome. He indicated that appellant had minimal signs of
plantar fasciitis and still had some enthesopathy on the lateral ankle. Dr. Brecher opined that
appellant was capable of returning to her job if she used a postal service vehicle that allowed her
to sit on the right side. He also reported that he was unable to say with certainty whether
appellant’s plantar fasciitis related to her employment.
In an April 15, 2015 report, Dr. Smith related that he reviewed Dr. Brecher’s March 17,
2015 second opinion report and the SOAF. He reported that it was his understanding that
Dr. Brecher was in agreement with his findings so he was in agreement with Dr. Brecher’s
findings.
By decision dated April 29, 2015, OWCP denied appellant’s claims for wage-loss
compensation beginning April 22, 2014 and continuing. It found that the medical evidence
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submitted was insufficient to establish that appellant was unable to work or required work
restrictions due to her accepted left foot conditions. OWCP noted that both Dr. Smith, appellant’s
treating physician, and Dr. Brecher agreed that tarsal tunnel syndrome was no longer present.
In a May 26, 2015 duty status report (Form CA-17), Dr. Smith indicated that appellant
could return to full-time work on May 30, 2015, but with no overtime. He continued to provide
CA-17 forms dated July 6, 2015 indicating that appellant could work full time with no overtime.
On August 17, 2015 appellant requested reconsideration.
In a letter dated May 28, 2015, Dr. Smith indicated that regarding appellant’s disability, it
was his understanding that due to the limiting restrictions appellant was unable to return to work
because the employing establishment could not meet those restrictions. He related that appellant’s
pain continued and she was unable to work. Dr. Smith reported that he continued to treat appellant
for sinus tarsi syndrome, which never resolved. He noted that appellant had since been released
to work on May 30, 2015 with minimal restrictions.4 Dr. Smith further clarified that in previous
disability forms he had stated “no to activities” but then listed hours per day in error. He requested
that OWCP disregard those hourly notations.
Dr. Smith continued to treat appellant for her left foot condition in reports dated May 26 to
October 19, 2015. He also completed duty status reports (CA-17 forms), which indicated that
appellant could return to work full time with no overtime.
In an October 5, 2015 letter, Dr. Smith related that he had treated appellant for a painful
entrapped nerve at the sinus tarsi area of the left foot. He discussed the options of surgical
intervention and injections to treat her symptoms.
By letter dated October 19, 2015, Dr. Smith further indicated that appellant was diagnosed
with sinus tarsi syndrome, capsulitis, and left foot pain. He recommended nerve sclerosing
injections in order to reduce the pain and increase her hours at work pain free.
By decision dated November 12, 2015, OWCP denied modification of its April 29, 2015
decision.
OWCP subsequently received medical reports and letters from Dr. Smith dated October 20
and December 12, 2014, and January 14, May 28, August 31, September 28, and October 5, 2015
that were previously of record.
On February 8, 2016 appellant accepted a limited-duty job offer from the employing
establishment as a full-time modified rural carrier.
In a February 22, 2016 report and duty status report (Form CA-17), Dr. Smith related that
appellant had 100 percent relief of left foot pain and expressed interest in returning to full duty,
including doing overtime. He provided examination findings and diagnosed left foot sinus tarsi
4
Dr. Smith further indicated that appellant would be driving a regular postal vehicle, which would not be as difficult
for her.

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syndrome, left foot plantar fasciitis, and resolving right ankle capsulitis. Dr. Smith indicated that
appellant could work a normal schedule.
By letter dated February 23, 2016, Dr. Smith reported that appellant had been under his
care since November 1, 2013 for tarsal tunnel syndrome (sinus tarsi syndrome). He noted that
appellant had recently undergone a series of nerve sclerosing injections to the left sinus tarsi area
with much improvement to the left foot. Dr. Smith related that appellant could work full duty with
no restrictions.
On May 3, 2016 appellant requested reconsideration.
By decision dated August 2, 2016, OWCP denied modification of its November 12, 2015
decision. It found that the medical evidence submitted was insufficient to establish that she was
disabled from work beginning on April 22, 2014 due to her work-related left foot conditions.
OWCP noted that Dr. Brecher determined in his March 17, 2015 second opinion report that
appellant’s left foot tarsal tunnel syndrome had resolved. It also determined that, while the medical
evidence of record established that appellant had developed left foot plantar fasciitis, it was
insufficient to establish that her new condition resulted from her employment.
On July 19, 2017 appellant requested reconsideration.
In a June 28, 2017 report, Dr. Smith indicated that from November 2013 to February 2016
he treated appellant for left enthesopathy, left sinus tarsi syndrome, and plantar fasciitis of the left
heel. He reported that on June 17, 2014 appellant was examined at his office and complained of
left heel pain and swelling. Dr. Smith explained that the “plantar fasciitis developed during her
treatment for the sinus tarsi syndrome of the left foot which was the original cause of her being off
work.” He related that once appellant developed plantar fasciitis, he continued to treat appellant
for sinus tarsi syndrome because it had never resolved and was the reason appellant was unable to
work.
By decision dated September 25, 2017, OWCP denied reconsideration of the merits of
appellant’s claim. It found that she had not met the requirements of 5 U.S.C. § 8128(a) sufficient
to warrant merit review. OWCP determined that the additional medical reports submitted were
cumulative and substantially similar to medical evidence previously considered.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a

5

5 U.S.C. § 8128(a).

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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.6
A request for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.7 If it chooses to grant reconsideration, it reopens and reviews
the case on its merits.8 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.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim under 5 U.S.C. § 8128(a).
In its August 2, 2016 merit decision, OWCP again denied appellant’s claim for wage-loss
compensation beginning April 22, 2014, finding that the medical evidence of record failed to
establish that she was unable to work as a result of her accepted left foot/ankle conditions.
Appellant subsequently requested reconsideration on July 19, 2017 and submitted additional
medical evidence.
Appellant’s request for reconsideration did not show that OWCP erroneously applied or
interpreted a specific point of law, or advance a new and relevant legal argument not previously
considered by OWCP. Consequently, she was not entitled to a review of the merits based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
In support of her reconsideration request, appellant submitted a June 28, 2017 report by
Dr. Smith. Dr. Smith noted that he had treated appellant for left enthesopathy, left sinus tarsi
syndrome, and plantar fasciitis of the left heel from November 2013 to February 2016. He
explained that the left foot plantar fasciitis developed during treatment for appellant’s sinus tarsi
syndrome, which was the original cause of her being off work. Dr. Smith reported that appellant’s
sinus tarsi syndrome had never resolved and was the reason that appellant was unable to work.
The Board finds that Dr. Smith merely repeated his opinion from his previous May 28, 2015 letter
that appellant continued to suffer from her left foot sinus tarsi syndrome, which prevented her from
returning to work. The Board has held that the submission of evidence that duplicates or is
substantially similar to evidence already in the case record does not constitute a basis for reopening
a case.10 Accordingly, the Board finds that appellant has not provided OWCP with evidence which

6

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
7

Id. at § 10.607(a).

8

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

9

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

10

E.M., Docket No. 09-0039 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

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meets the requirements of 20 C.F.R. § 10.606(b)(3) sufficient to require further merit review of
her claim.
The Board finds that as appellant has not met any of the regulatory requirements, OWCP
properly declined her request for reconsideration of the merits of her claim under 5 U.S.C.
§ 8128(a).11 Thus, OWCP did not abuse its discretion in refusing to reopen her claim for a review
on the merits.
On appeal appellant contends that Dr. Smith’s disability notes supported that she was
unable to work. As explained, however, the Board does not have jurisdiction to review the merits
of appellant’s claim. The only decision properly before the Board on this appeal is the
September 25, 2017 nonmerit decision, which denied appellant’s July 19, 2017 request for
reconsideration of the merits of her claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

11
A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the September 25, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 10, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, MILWAUKEE
VEHICLE MAINTENANCE FACILITY,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 21-1206
Issued: March 24, 2022

Case Submitted on the Record

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

JURISDICTION
On August 4, 2021 appellant, through counsel, filed a timely appeal from a June 22, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish medical conditions
causally related to the accepted July 9, 2019 employment incident.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On July 10, 2019 appellant, then a 56-year-old body repairman, filed a traumatic injury
claim (Form CA-1) alleging that on July 9, 2019 he sustained a pinched nerve in his left shoulder
when he lifted a Long Life Vehicle (LLV) door while in the performance of duty. He stopped
work on that date and returned to modified duty on July 10, 2019.
In a July 12, 2019 duty status form report (Form CA-17), Dr. Cindy Catania, an osteopath
Board-certified in family medicine, noted a July 9, 2019 date of injury. She indicated clinical
findings of left shoulder impingement syndrome and left upper back muscle spasm.
In an October 17, 2019 development letter, OWCP informed appellant that it had reopened
his claim for reconsideration of the merits because he had filed a notice of recurrence (Form
CA-2a),4 and that his claim would now be formally adjudicated. It advised him of the deficiencies
of his claim and requested additional factual and medical evidence. OWCP afforded appellant 30
days to provide the necessary factual information and medical evidence.
In an October 23, 2019 note, Dr. Cameron Best, a Board-certified orthopedic surgeon,
advised that appellant was unable to work until his electromyography (EMG) study.
By decision dated November 27, 2019, OWCP denied appellant’s claim. It accepted that
the July 9, 2019 incident occurred as alleged and that left shoulder and cervical conditions had
been diagnosed, however, it denied his claim finding that he had failed to establish that his medical
conditions were causally related to the accepted employment incident.
Appellant subsequently submitted diagnostic testing reports. A July 12, 2019 left shoulder
magnetic resonance imaging (MRI) scan revealed focal cortical irregularity of the acromion. A
July 17, 2019 left shoulder x-ray examination report showed normal shoulder alignment and mild
acromioclavicular degenerative changes. An October 17, 2019 cervical spine MRI scan
demonstrated severe left foraminal stenosis at the C4-5 and C5-6 levels. An October 17, 2019 left
shoulder MRI scan revealed marked supraspinatus and infraspinatus tendinosis, multifoca l labral
tearing, moderate acromioclavicular (AC) joint degenerative change with ganglion cyst formation,
and mild teres minor atrophy.
3

Docket No. 20-1486 (issued March 16, 2021).

4

On October 10, 2019 appellant filed a recurrence claim for disability from work commencing October 9, 2019
due to his July 9, 2019 employment injury.

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In reports dated July 9 and 12, 2019, Dr. Catania noted that appellant was reevaluated for
his injuries of left shoulder strain and left thoracic muscle spasm since July 8, 2019. She provided
examination findings and noted diagnosis of left shoulder impingement syndrome, left shoulder
muscle spasm, left shoulder acute pain, left shoulder strain, paresthesia and pain of the left
extremity, and peripheral fatigue.
In a July 17, 2019 report, Dr. Jonathan E. Campbell, a Board-certified orthopedic surgeon,
recounted appellant’s complaints of left shoulder pain and numbness. He conducted an
examination and diagnosed left forearm and hand numbness with possible ulnar neuritis.
In reports dated October 14 and 21, 2019, Dr. David K. DeDianous, Board-certified in
physical medicine and rehabilitation, recounted appellant’s symptoms of middle back and left
shoulder pain. He provided examination findings and diagnosed shoulder pain, left arm
paresthesia, tendinitis, and cervical pain and radiculopathy.
In a November 11, 2019 letter, Dr. R.J. Hammett, a chiropractor, indicated that he was
treating appellant for injuries sustained at work. Appellant submitted additional chiropractic
treatment notes dated October 29 through November 19, 2019.
On February 18, 2020 appellant requested reconsideration.
In a December 3, 2019 letter, Dr. Hammett discussed appellant’s examination findings and
noted that a cervical spine x-ray evaluation revealed loss of cervical lordosis, degenerative disc
spaces at C5-6 with osteophytic spurring, and flexion malposition at C5 and C6. He diagnosed
vertebral subluxation complexes of C1 and C5 with a loss of cervical lordosis, and cervical
degenerative changes. In an undated addendum letter, Dr. Hammett noted that the injury was
initially caused on July 9, 2019 when lifting an LLV door onto sawhorses and flipping them over.
By decision dated May 6, 2020, OWCP denied modification of November 27, 2019
decision.
Appellant, through counsel, appealed to the Board. By decision dated March 16, 2021, the
Board affirmed OWCP’s May 6, 2020 decision.5
On April 13, 2021 appellant, through counsel, requested reconsideration.6
In an undated addendum letter, Dr. Hammett indicated that he was clarifying his previous
October 20 and December 3, 2019 reports and letters. He noted that appellant first presented in
his office complaining of mid-back and neck pain radiating into his hands with numbness and
tingling in the radial nerve dermatome. Dr. Hammett opined that the injury was initially caused
5

Supra note 3.

6

Although counsel claimed to be filing a request for reconsideration from the Board’s March 16, 2021 decision,
OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject
matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R.
§ 501.6(d). Although the March 16, 2021 Board decision was the last merit decision, the May 6, 2020 OWCP decision
is the appropriate subject of possible modification by OWCP.

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on July 9, 2019 when appellant lifted an LLV door at work. He recounted that appellant had
informed him that this particular job was heavy and awkward because of the weight and angles
that the doors have to be flipped.
By decision dated June 22, 2021, OWCP denied modification of the May 6, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 8 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 9 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 10
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established. 11
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. Second, the employee must submit evidence, in the
form of probative medical evidence, to establish that the employment incident caused a personal
injury.12
To establish causal relationship between the condition, as well as any attendan t disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence. 13 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported

7

Supra note 2.

8

F.H., Docket No. 18-0869 (issued January 29, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
9

L.C., Docket No. 19-1301 (issued January 29, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
10

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
11

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

12

T.H., Docket No. 19-0599 (issued January 28, 2020); B.M., Docket No. 17-0796 (issued July 5, 2018); David
Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).
13

S.S., Docket No. 19-0688 (issued January 24, 2020); S.A., Docket No. 18-0399 (issued October 16, 2018); see
also Robert G. Morris, 48 ECAB 238 (1996).

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by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee. 14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish medical
conditions causally related to the accepted July 9, 2019 employment incident.
Appellant submitted an addendum letter to the prior reports of Dr. Hammett, a chiropractor,
who indicated that he was treating appellant for complaints of mid-back and neck pain radiating
into his hands with numbness and tingling in the radial nerve dermatome. He opined that
appellant’s injury was initially caused on July 9, 2019 when he lifted an LLV door at work. Under
FECA, 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.15 The Board finds that Dr. Hammett did treat appellant’s
subluxation as demonstrated by x-ray to exist and has treated it with manual manipulation.
Therefore, Dr. Hammet is considered a physician under FECA. 16 However, he has not provided a
rationalized medical opinion establishing causal relationship between the diagnosed subluxation
and the accepted July 9, 2019 employment incident. 17 Therefore, appellant has not met his burden
of proof.
On appeal, counsel argues that Dr. Hammett provided clarification of his opinion on causal
relationship and diagnosed subluxation based upon an x-ray scan. As explained above, however,
Dr. Hammett is not considered a physician as defined under FECA.
As the medical evidence of record is insufficient to establish causal relationship between
appellant’s medical conditions and the accepted July 9, 2019 employment incident, 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.

14

C.F., Docket No. 18-0791 (issued February 26, 2019); M.V., Docket No. 18-0884 (issued December 28, 2018);
I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).
15

Section 8101(2) of FECA provides that the term physician includes chiropractors only if the treatment consists
of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist. 5 U.S.C. § 8101(2).
See J.D., Docket No. 19-1953 (issued January 11, 2021); T.T., Docket No. 18-0838 (issued September 19, 2019);
Thomas W. Stevens, 50 ECAB 288 (1999).
16

See id. The Board notes that it did not properly characterize Dr. Hammett as a physician on prior appeal; however,
that was harmless error as he has not provided a rationalized medical opinion establishing causal relationship.
17

See supra note 13.

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish medical
conditions causally related to the accepted July 9, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
U.S. POSTAL SERVICE, ANSONIA STATION,
New York, NY, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 16-1804
Issued: March 23, 2017

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On September 9, 2016 appellant, through her attorney, filed a timely appeal from a
June 30, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP)
finding. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
The Board, having duly considered the matter, concludes that the case is not in posture
for decision. By decision dated June 30, 2016, the hearing representative reviewed an additional
claim2 and “found medical documents … which pertained to this claim.” He specifically
mentioned and relied on notes dated May 7 and July 30, 2015 from appellant’s attending
physician in OWCP File No. xxxxxx321. These notes are not in the record before the Board.

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

OWCP File No. xxxxxx321.

Section 501.2(c) of the Board’s Rules of Procedure,3 provides that the Board has
jurisdiction “to consider and decide appeals from the final decision of OWCP in any case arising
under the [Federal Employees Compensation] Act.”4 Additionally, the Board’s review of the
case is limited to the evidence which was before OWCP at the issuance of the final decision.5
Since the record as transmitted to the Board does not contain evidence that OWCP relied upon in
reaching its final decisions, the Board is unable to properly “consider and decide” appellant’s
claim. Furthermore, OWCP procedures provide that cases should be combined where correct
adjudication depends on cross-referencing between files.6 The June 30, 2016 decision of OWCP
must be set aside and the case remanded to OWCP for reconstruction and proper assemblage of
the case record including combining all the files relied upon by OWCP’s hearing representative.
Following this and such further development as OWCP deems necessary, OWCP shall issue a
de novo decision. According,
IT IS HEREBY ORDERED that the June 30, 2016 decision of the Office of Workers’
Compensation Programs is hereby set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: March 23, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
3

20 C.F.R. § 501.2(c).

4

5 U.S.C. §§ 8101-8193.

5

See 20 C.F.R. § 501.2(c)(1).

6

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 11-1409
Issued: December 7, 2011

Case Submitted on the Record

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

JURISDICTION
On May 24, 2011 appellant, through her attorney, filed a timely appeal from an April 25,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation effective
October 24, 2010 on the grounds that she had no further disability due to her accepted
employment injury.
FACTUAL HISTORY
On September 23, 2004 appellant, then a 35-year-old letter carrier, filed a traumatic
injury claim alleging that on that date she injured her left foot delivering mail. OWCP accepted
1

5 U.S.C. § 8101 et seq.

the claim for a left foot sprain, a closed fracture of the left fourth and fifth metatarsal bones, a
closed fracture of the left cuboid bone and a closed fracture of the left astragalus.2 Appellant
worked limited duty following her injury.
OWCP accepted that appellant sustained a recurrence of disability in October 2008 and
paid her compensation for total disability.3 In a letter dated October 7, 2008, appellant described
her duties as a letter carrier to Dr. Zachary Newland, an attending podiatrist.
On January 29, 2009 Dr. Newland opined that appellant’s ankle injury had become
chronic. He explained that she had damage to the soft tissue around her ankle and that scar
tissue had “replaced the normal elastic properties of her tendinous structures and therefore have
weakened the muscular strength needed for regular ankle joint motion and function. This has
resulted in instability promoting frequent and recurren[t] ankle sprains along with pain and
swelling.” Dr. Newland opined that appellant was disabled from her work duties.
By letter dated April 10, 2009, OWCP advised Dr. Newland that it had accepted that
appellant sustained a recurrence of disability. It noted that appellant performed limited duty after
her injury but that a letter that she gave him described her regular work duties as a letter carrier.
OWCP requested that Dr. Newland complete an enclosed work restriction evaluation.
Appellant retired from the employing establishment on disability
April 27, 2009. OWCP placed her on the periodic rolls beginning April 25, 2009.4

effective

On July 17, 2009 OWCP referred appellant to Dr. Jonathan Clark Race, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated August 11, 2009,
Dr. Race discussed her history of injury and reviewed the medical records, including the results
of diagnostic studies. On examination he measured range of motion of the left ankle and foot
and found a “slight bit of tenderness over the lateral aspect of the calcaneus and over the
calcaneocuboid joint” and “mild inversion laxity of the left ankle, which is symmetrical with her
right ankle.” Dr. Race determined that the “ankle joint itself has no effusion, crepitus or obvious
intraarticular abnormalities. The midfoot and forefoot are normal. [Appellant] has no pain or
deformity over the tarsometatarsal joints.” Dr. Race diagnosed chronic left hindfoot pain of
uncertain etiology. He stated, “[Appellant’s] trabecular fractures should certainly have healed by
now. There is no objective evidence of any significant orthopedic anomaly of her left ankle and
foot. [Appellant’s] symptoms primarily consist of subjective complaints of pain.” Dr. Race
found that appellant had no objective findings due to her accepted employment injury and that
she could return to her regular employment. He asserted that her symptoms were not explained
by physical examination findings or a review of the medical records. Dr. Race found that
appellant had no need for additional medical treatment.

2

By decision dated August 20, 2007, OWCP granted appellant a schedule award for a 10 percent permanent
impairment of the left lower extremity.
3

The employing establishment indicated on a June 23, 2008 notice of recurrence of disability that appellant
worked limited duty in connection with another claim number.
4

Appellant relocated in June 2009.

2

On April 14, 2010 OWCP advised appellant that it proposed to terminate her
compensation benefits based on the opinion of Dr. Race that she had no further injury-related
disability.
A July 12, 2010 magnetic resonance imaging (MRI) scan study of the left ankle revealed
an old anterior talofibular ligament injury with no acute injury or chronic impingement.
On July 28, 2010 appellant underwent a functional capacity evaluation. The evaluating
chiropractor recommended physical therapy. In a report dated August 25, 2010, Dr. Les Benson,
who specializes in emergency medicine, related that he referred appellant to physical therapy
with the goal of increasing her range of motion and ability to walk.
By decision dated October 7, 2010, OWCP terminated appellant’s compensation effective
October 24, 2010 based on its finding that she had no further disability due to her September 23,
2004 left foot injury. It determined that Dr. Race’s opinion represented the weight of the
evidence and established that she had no residuals of her accepted employment injury.
On October 13, 2010 appellant, through her attorney, requested a telephone hearing. At
the telephone hearing, held on February 7, 2011, she related that she continued to experience left
foot problems.
In a decision dated April 25, 2011, the hearing representative affirmed the October 7,
2010 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.6
ANALYSIS
OWCP accepted that appellant sustained left foot sprain, a closed fracture of the fourth
and fifth metatarsal bones and a closed fracture of the cuboid bone and the astragalus of the left
foot. Appellant worked limited-duty employment. She sustained a recurrence of disability in
October 2008. Appellant retired from the employing establishment on April 27, 2009 and
OWCP placed her on the periodic rolls.
In a report dated January 29, 2009, Dr. Newland advised that appellant’s ankle injury was
chronic and that she was disabled from her work duties as a letter carrier. He found that she
sustained soft tissue injuries to her ankle. Dr. Newland further opined that scar tissue had
5

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

6

Gewin C. Hawkins, 52 ECAB 242 (2001).

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weakened muscles supporting ankle motion and function and resulted in instability and repeated
ankle sprains. On April 10, 2009 OWCP noted that it appeared that appellant worked limited
duty following her injury. It requested that Dr. Newland address her limitations in a work
restriction evaluation. Dr. Newland did not, however, respond to the request for further
information. His report is thus insufficient to establish the extent of appellant’s injury-related
impairment. Further, Dr. Newland did not explain how her work injury resulted in damage to the
soft issue and formed scar tissue. Medical conclusions unsupported by rationale are of
diminished probative value.7
As Dr. Newland failed to respond to its request for additional information, OWCP
referred appellant to Dr. Race for a second opinion evaluation. OWCP terminated her
compensation benefits based on its finding that his report constituted the weight of the medical
evidence and established that she had no further employment-related disability. The Board has
reviewed the opinion of Dr. Race and finds that it has reliability, probative value and convincing
quality with respect to the conclusions reached. On August 11, 2009 Dr. Race reviewed the
history of injury and the medical reports of record. On examination he found no effusion,
crepitus or intraarticular abnormalities of the left ankle and mild left ankle inversion laxity
symmetrical with the right ankle. Dr. Race diagnosed chronic left hindfoot pain of unclear origin
and without objective findings showing “any significant orthopedic anomaly of her left ankle and
foot.” He found the employment injury had resolved and that appellant could return to work.
Dr. Race provided rationale for his opinion by explaining that there were no objective findings
supporting continued residuals of the accepted condition. The Board finds Dr. Race’s second
opinion report is sufficiently rationalized to establish that appellant’s employment-related back
strain and aggravation of degenerative back arthritis have resolved.8 Dr. Race’s reasoned
opinion is based on a proper factual and medical history and statement of accepted facts and thus
represents the weight of the evidence.
The remaining evidence of record submitted prior to OWCP’s termination of
compensation, is insufficient to show that appellant remained disabled due to the employment
injury. On August 25, 2010 Dr. Benson referred her to physical therapy to attempt to improve
her range of motion and walking. He did not, however, provide a diagnosis, an opinion on
causation or discuss the relevant issue of whether appellant had continuing employment-related
disability.9

7

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

8

See Michael S. Mina, 57 ECAB 379 (2006) (in assessing medical evidence, the weight of such evidence is
determined by its reliability, its probative value and its convincing quality; the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested and the medical rationale expressed in support of the physician’s opinion are facts which
determine the weight to be given to each individual report).
9

See Carol A. Lyles, 57 ECAB 265 (2005) (whether a particular injury caused an employee disability from
employment is a medical issue which must be resolved by competent medical evidence); see also Conard
Hightower, 54 ECAB 796 (2003) (medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of diminished probative value on the issue of causal relationship).

4

CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation effective
October 24, 2010 on the grounds that she had no further disability due to her accepted
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2011
Washington, DC

Richard J. Daschbach, 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
__________________________________________
B.J., claiming as son of B.J., Appellant
and
TENNESSEE VALLEY AUTHORITY,
SHAWNEE FOSSIL PLANT, Chattanooga, TN,
Employer
__________________________________________

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Appearances:
Ellis Jones, for the appellant
Office of Solicitor, for the Director

Docket No. 14-340
Issued: June 25, 2014

Case Submitted on the Record

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

JURISDICTION
On November 22, 2013 appellant, through his representative, filed a timely appeal of the
May 28, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) which
denied appellant’s reconsideration request on the grounds that it was untimely filed and failed to
present clear evidence of error. Because more than 180 days elapsed from the most recent merit
decision of January 3, 2011 to the filing of this appeal on November 22, 2013, the Board lacks
jurisdiction to review the merits of appellant’s claim 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.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. One hundred and eighty
days from May 28, 2013, the date of OWCP’s decision, was November 24, 2013. Since using November 29, 2013,
the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the
postmark is considered the date of filing. The date of the U.S. Postal Service postmark is November 22, 2013,
which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.3 In a July 18, 2008 decision, the Board
reversed OWCP’s decision dated August 27, 2007 and remanded the case for development and
adjudication of the claim. The Board found that appellant timely filed a claim for death benefits.
In a decision dated January 3, 2011, the Board found that appellant did not meet his burden of
proof to establish that the employee’s death on April 6, 2003 was causally related to his
employment.4 The facts of the case as set forth in the Board’s prior decisions are incorporated
herein by reference.
In an appeal form dated May 13, 2013, appellant’s representative requested
reconsideration. She asserted that the evidence submitted supported that the employee, a
deceased technical services supervisor, developed renal cell cancer with metastasis while
performing his work duties which included working with and around asbestos at the employing
establishment. Appellant’s representative noted that the employee was first aware of his disease
on August 15, 1999. The employee was terminated from employment due to a reduction-inforce on November 15, 1996. Appellant’s representative summarized the employee’s duties as a
material tester noting his exposure to coal, coal ash and asbestos. She addressed the history of
the employee’s hospital admissions from August 22, 2000, when the employee was diagnosed
with renal cell carcinoma. Appellant’s representative contends that the medical evidence of
record supports that the employee’s death was causally related to his employment.
Appellant’s representative resubmitted hospital records from November 14 to 19, 2002; a
November 14, 2002 report from Dr. Burton Stodghill, a Board-certified orthopedic surgeon; a
November 16, 2002 computerized tomography (CT) scan of the chest; a November 20, 2002
thoracentesis procedure note; hospital admission records from January 2 to 10, 2003; reports
from Dr. Harry Carloss, a Board-certified internist; multiple pathology reports from
November 2002 to February 2003; various x-ray, bone scan and CT scans from August 16, 2000
to April 5, 2003; a death certificate; a CA-1, notice of traumatic injury, alleging a left knee
contusion on August 25, 1989; and employer medical records from December 11, 1984 to
May 7, 1996. She also submitted the employee’s October 26, 1983 and October 29, 1984 job
applications; a job history summary; a job description for a public safety officer; a job
description for a materials tester; e-mails dated January 5, 2009 from Mr. Bradford, a safety
consultant and industrial hygienist; and a January 26, 2009 statement from James R. Hubbard, a
safety consultant, all previously of record. Appellant’s representative submitted a CA-2, notice
of occupational disease, filed on December 26, 2001, in which the employee asserted that he
sustained hearing loss as a result of his employment duties.
3

Docket No. 08-289 (issued July 18, 2008).

4

Docket No. 10-177 (issued January 3, 2011).

2

Dr. Charles W. Ransler, a Board-certified urologist, provided reports dated January 24,
1989 to September 7, 2000. He treated the employee for intermittent pain in the left testis and
diagnosed with mild chronic epididymitis. The employee underwent a CT scan on August 16,
2000 which revealed a mass in the left upper quadrant of the left kidney with necrosis, with no
evidence of metastasis to the lungs or pelvis. Dr. Ransler hospitalized the employee and, on
August 22, 2000, he performed a left radical nephrectomy with node dissection and
adrenalectomy and diagnosed left renal cell carcinoma, stage A. He noted that the pathology
report revealed a large necrotic tumor grade 2 with no evidence of invasion of the renal pelvis or
capsule. In reports dated September 7, 2000 to December 26, 2002, Dr. Ransler noted a
November 7, 2002 chest x-ray showed a mass and the employee reported pain in his left knee
and a fractured femur which suggested a possible pathologic fracture from a metastatic lesion.
On December 26, 2002 Dr. Ransler noted the nephrectomy was not extensive through the
capsule and was grade 2, but there was a possible pathologic fracture of the left femur and a
pleural effusion. He could not confirm metastatic disease as no actual tumor cells were found in
the femur or lung.
The employee was also treated by Dr. Jimmie N. Mancell, a Board-certified internist. On
February 24, 2003 Dr. Mancell diagnosed status post left proximal femur resection with
endoprosthesis reconstruction, status post embolization of tumor vasculature, renal cell
carcinoma status post left nephrectomy in 1997 with recent pathological fracture of the left femur
and repair in December 2002. A February 24, 2003 pathology report from a left femur mass
revealed malignant spindle cell proliferation and possible sarcomatoid. Chest x-rays of
February 24 and 27, 2003 revealed an infiltrate in the left lower lobe. The employee was
hospitalized on March 20, 2003 for metastatic renal cell carcinoma with symptoms of intractable
nausea and vomiting and worsening renal function. On March 20, 2003 Dr. Anita L. Arnold, a
Board-certified internist, diagnosed recurrent nausea and vomiting, acute and chronic renal
insufficiency, renal cell carcinoma with metastasis to the lung bases and pleural effusions and
bony metastases. A March 28, 2003 CT scan of the thorax showed moderate left pleural effusion
with lower lobe atelectasis and an infiltrate in the right lung base.
By decision dated May 28, 2013, OWCP denied appellant’s request for reconsideration as
it was untimely and did not establish clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.5 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be filed within one year of the date of OWCP’s
decision for which review is sought.6 Imposition of this one-year filing limitation does not
constitute an abuse of discretion.7
5

5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

6

20 C.F.R. § 10.607(a). See also D.O., Docket No. 08-1057 (issued June 23, 2009); W.G., Docket No. 08-2340
(issued June 22, 2009).
7

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

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OWCP may not deny a reconsideration request solely on the grounds that it was not
timely filed. When a claimant’s application for review is not timely filed, OWCP must
nevertheless undertake a limited review to determine whether it establishes clear evidence of
error. If an application demonstrates clear evidence of error, OWCP will reopen the case for
merit review.8
To establish clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP,9 is positive, precise, and explicit, and manifests on its face
that OWCP committed an error.10 The evidence must not only be of sufficient probative value to
create a conflict in medical opinion or establish a clear procedural error, but must also shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to establish clear evidence of error. It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has established clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.11
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. The most recent merit decision was the Board’s January 3, 2011
decision. Appellant’s May 13, 2013 letter requesting reconsideration was received by OWCP
more than one year after the January 3, 2011 merit decision. Therefore, it was not timely filed.12
Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the
claim for compensation.
The Board finds that appellant has not established clear evidence of error on the part of
OWCP. On reconsideration, appellant’s representative asserted that the evidence submitted
supported that the employee developed renal cell cancer with metastasis while performing his
work duties, which included working with and around asbestos. Appellant’s representative
summarized the employee’s duties and provided a detailed medical history. While appellant
expressed disagreement with OWCP’s denial of the claim, the general allegations concerning the
employee’s duties and medical treatment do not raise a substantial question as to the correctness
8

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of
error” is intended to represent a difficult standard).
9

Dean D. Beets, 43 ECAB 1153 (1992).

10

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

11

J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

12

20 C.F.R. § 10.607(a). See Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1604.4(a) (October
2011), which provides in pertinent part: [A] right to reconsideration within one year accompanies any subsequent
merit decision on the issues. This includes any merit decision by ECAB.

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of OWCP’s decision. OWCP properly found that appellant’s statement of May 13, 2013 did not
establish clear evidence of error.
The Board notes that the underlying issue is medical in nature. On reconsideration,
appellant submitted additional medical evidence. Appellant resubmitted certain reports dated
December 11, 1984 to April 6, 2003. OWCP previously considered this evidence and appellant
did not explain how this evidence was positive, precise and explicit in manifesting on its face
that it committed an error in denying the claim for compensation. The resubmission of this
evidence is not sufficient to raise a substantial question as to the correctness of OWCP’s
decision. Thus, these reports are insufficient to discharge appellant’s burden of proof.
The reports from Dr. Ransler dated January 24, 1989 to September 7, 2000, noted
treatment for renal cell carcinoma. On August 22, 2000 he performed a left radical nephrectomy
with node dissection and adrenalectomy and diagnosed left renal cell carcinoma, stage A. In
reports dated to December 26, 2002, Dr. Ransler noted a November 7, 2002 chest x-ray revealed
a mass. On December 26, 2002 he opined that the employee probably had metastatic disease.
Dr. Ransler noted the nephrectomy was not extensive through the capsule and there was a
possible pathologic fracture of the left femur and a pleural effusion. These reports are
insufficient to establish clear evidence of error on the part of OWCP in denying the claim.13 This
evidence is not so positive, precise or manifest that OWCP committed an error. Dr. Mancell’s
February 24, 2003 report noted diagnoses and a treatment plan and not the cause of the
employee’s condition. Dr. Arnold’s March 20, 2003 report also noted diagnoses and a treatment
plan but did not address the cause of the employee’s diagnosed conditions or death. Other
medical evidence such as diagnostic test reports did not specifically address whether the
employees employment activities had caused or contributed to the employee’s death. Evidence
such as a well-rationalized medical report which, if submitted before the denial was issued would
have created a conflict in medical opinion is not clear evidence of error.14 Therefore, these
reports are insufficient to show clear evidence of error by OWCP.
The Board notes that clear evidence of error is intended to represent a difficult standard.
The submission of 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.15
Thus, appellant has not established clear evidence of error by OWCP in its May 28, 2013
decision.

13

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
14

See Joseph R. Santos, 57 ECAB 554 (2006).

15

Id.

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CONCLUSION
The Board finds that appellant’s request for reconsideration dated May 13, 2013 was
untimely filed and did not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND,
China Lake, CA, Employer
__________________________________________

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

Docket No. 11-1376
Issued: December 28, 2011

Case Submitted on the Record

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

JURISDICTION
On May 17, 2011 appellant filed a timely appeal from a December 21, 2010 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying his claim for an
employment-related injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
right knee injury in the performance of duty on June 10, 2010, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the December 21, 2010 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On October 26, 2010 appellant, then a 46-year-old sheet metal mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on June 10, 2010 he sustained a right knee
injury as a result of jumping off the side of a flatbed truck while unloading material in the
performance of duty.
By letter dated November 17, 2010, OWCP notified appellant of the deficiencies of his
claim and requested factual and medical evidence. It allotted him 30 days to submit additional
evidence and respond to its inquiries.
Appellant submitted reports dated June 29 and November 1, 2010 by Susan Hammon, a
nurse practitioner, who diagnosed ankle swelling, knee swelling and heat edema. Ms. Hammon
released appellant without limitations and opined that his knee swelling did not appear to be
work related.
By decision dated December 21, 2010, OWCP denied appellant’s claim on the grounds
that the evidence submitted was not sufficient to establish fact of injury finding that the injury
did not occur as alleged and that there was no medical evidence supporting an employmentrelated injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment

3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

T.H., 59 ECAB 388 (2008).
1143 (1989).

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB

2

incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury while in the performance of duty. However, the
employee’s statements must be consistent with the surrounding facts and circumstances and his
or her subsequent course of action.7 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may cast doubt on an employee’s statements in
determining whether he or she has established a prima facie claim for compensation. The
employee has the burden of establishing the occurrence of an alleged injury at the time, place
and in the manner alleged by a preponderance of the evidence.8 An employee has not met this
burden when there are such inconsistencies in the evidence that cast serious doubt upon the
validity of the claim. However, an employee’s statement alleging that an injury occurred at a
given time and in a given manner is of great probative value and will stand unless refuted by
strong and persuasive evidence.9
ANALYSIS
The Board finds that appellant did not meet his burden of proof in establishing that on
June 10, 2010 he sustained a right knee injury as a result of jumping off the side of a flatbed
truck while unloading material in the performance of duty. As noted above, the first element of
fact of injury requires that appellant submit evidence establishing that an incident occurred at the
time, place and in the manner alleged. By letter dated November 17, 2010, OWCP advised
appellant of the deficiencies of his claim and requested additional factual and medical evidence.
Appellant did not submit a narrative statement or provide any additional factual information as
requested. Moreover, the reports from Ms. Hammon, a nurse practitioner, are of no probative
value as she is not a physician as defined under FECA.10 Accordingly, the Board finds that
appellant has not met his burden of proof in establishing that he experienced an employmentrelated incident at the time, place and in the manner alleged.11

6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

See Mary Jo Coppolino, 43 ECAB 988 (1992).

8

See R.T., Docket No. 08-408 (issued December 16, 2008).

9

See Allen C. Hundley, 53 ECAB 551 (2002); Earl David Seal, 49 ECAB 152 (1997).

10

5 U.S.C. § 8101(2). Section 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 also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).
11

Given that appellant did not establish an employment incident, further consideration of the medical evidence is
unnecessary. See Bonnie A. Contreras, 57 ECAB 364, 368 n.10 (2006).

3

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 submitted sufficient evidence to establish that the
June 10, 2010 employment incident occurred as alleged.
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 28, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 15-1532
Issued: March 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 8, 2015 appellant filed a timely appeal from a May 19, 2015 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed a
right shoulder condition causally related to factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 19, 2015 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 15, 2014 appellant, then a 43-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed a right shoulder condition as a result of
delivering mail in the performance of duty. He indicated that he first became aware of the
condition and its relation to his federal employment on August 4, 2014. In an August 15, 2014
narrative statement, appellant indicated that he began to feel pain in his right shoulder on
August 4, 2014 while delivering mail midway through his route between 11:00 a.m. and 1:00
p.m.
In an August 12, 2014 attending physician’s report (Form CA-20), Dr. Daniel Alexander,
an orthopedic surgeon, diagnosed right shoulder rotator cuff osseous abnormality and right
proximal biceps tendon pain secondary to tendinitis. He checked a box “yes” indicating his
support for causal relationship, noting that the injury occurred while appellant was on duty.
Dr. Alexander restricted appellant from lifting or carrying more than 10 pounds with the right
arm.
On August 26, 2014 Dr. Alexander released appellant to work without restrictions.
In a September 15, 2014 letter, OWCP notified appellant of the deficiencies of his claim
and afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted physical therapy notes dated August 14 through September 24, 2014
and two narrative statements. In his narrative statement dated October 2, 2014, he indicated that
he had been employed as a rural carrier for 23 years and his federal duties included sorting and
delivering mail which required twisting, bending, lifting, and reaching with the right arm six to
nine hours per day, five to six days per week. Appellant alleged that he sustained a right
shoulder injury on May 12, 2004 while reaching to grab the handle of a mailbox and pulling it
open. He alleged another right shoulder injury on April 17, 2007 while repeatedly reaching
longer distances than usual to insert mail into mailboxes due to a snow storm. Appellant did not
seek any medical treatment at either time, nor did he have any loss of work. He attached his two
previously filed traumatic injury claims (Form CA-1) for the alleged right shoulder injuries dated
May 12, 2004 and April 17, 2007.
In an August 12, 2014 report, Dr. Alexander diagnosed right shoulder rotator cuff
tendinitis with mild impingement and right proximal biceps tendon pain secondary to tendinitis
and noted that appellant had right shoulder pain “for some time, for about eight days,
progressively getting worse.” Appellant reported that he was working as a rural carrier on
August 4, 2014 when he started to develop significant right shoulder pain and denied prior injury
to the shoulder. Dr. Alexander found full passive and active motion to the bilateral shoulders
with 5/5 strength. He found a positive Speed’s test, mildly positive Hawkins’ test on the right, a
negative O’Brien’s test, and negative crossover. There was no tenderness about the right
acromioclavicular (AC) joint and appellant had mild-to-moderate tenderness over the right
proximal biceps tendon. X-rays of the right shoulder taken in the office that day showed no
significant osseous abnormality. Dr. Alexander reported that appellant was “pain free.” On
August 26, 2014 he found that appellant’s right shoulder impingement had improved and opined
that he was capable of returning to work without restrictions. On October 7, 2014 appellant

2

presented with no apparent distress and examination of the right shoulder revealed full active
range of motion in forward elevation and abduction. Hawkins’ testing was negative and
Dr. Alexander found that appellant was neurovascularly intact distally.
By decision dated November 20, 2014, OWCP found that the medical evidence was
insufficient to establish causal relationship between appellant’s right shoulder condition and
factors of his federal employment.
On February 10, 2015 appellant requested reconsideration and submitted physical therapy
notes dated August 17 through October 1, 2014. He also submitted progress reports dated
November 18, 2014 through March 24, 2015 from Dr. Alexander. On November 18, 2014
Dr. Alexander reported that appellant had full 5/5 strength of his rotator cuff muscles bilaterally,
a radial pulse of 2+ and equal bilaterally, and brisk capillary refill bilaterally. On December 30,
2014 he opined that appellant’s right shoulder condition was causally related to the repetitive
reaching that he did at his job. In his reports dated February 10 and March 24, 2015,
Dr. Alexander found that examination of appellant’s right shoulder revealed mild tenderness to
palpation over the AC joint and full range of motion, but with some discomfort and a positive
Hawkins’ sign. He requested a magnetic resonance imaging scan of the right shoulder.
By decision dated May 19, 2015, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6

3

Supra note 1.

4

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

6

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

3

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
developed a right shoulder condition causally related to factors of his federal employment.
The medical evidence appellant submitted fails to establish that fact of his federal
employment caused or aggravated his right shoulder condition. Appellant submitted a statement
in which he identified the factors of employment that he believed caused the condition, including
twisting, bending, lifting, and reaching with the right arm, which OWCP accepted as factual.
However, to establish a claim that he sustained an employment-related injury, he must also
submit rationalized medical evidence which explains how his medical condition was caused or
aggravated by the implicated employment factors.8
In an August 12, 2014 attending physician’s report, Dr. Alexander diagnosed right
shoulder rotator cuff osseous abnormality and right proximal biceps tendon pain secondary to
tendinitis. He checked a box marked “yes,” noting that the injury occurred while appellant was
on duty. The Board has held that a physician’s opinion that consists of checking a box on a form
report is of diminished probative value in establishing causal relationship.9 No rationale or
explanation was provided by Dr. Alexander on the issue of causal relationship.10
In another report also dated August 12, 2014, Dr. Alexander diagnosed right shoulder
rotator cuff tendinitis with mild impingement and noted that appellant had right shoulder pain
“for some time, for about eight days, progressively getting worse.” He found full passive and
active motion to the bilateral shoulders with 5/5 strength. There was no tenderness about the
right AC joint and appellant had mild-to-moderate tenderness over the right proximal biceps
tendon. X-rays of the right shoulder taken in the office that day showed no significant osseous
abnormality. Dr. Alexander reported that appellant was “pain free.”
An October 7, 2014 examination of appellant’s right shoulder revealed full active range
of motion in forward elevation and abduction. Hawkins’ testing was negative and Dr. Alexander
found that appellant was neurovascularly intact distally.

7

See O.W., supra note 5.

8

See A.C., Docket No. 08-1453 (issued November 18, 2008).

9

See Calvin E. King, 51 ECAB 394 (2000).

10

See Sedi L. Graham, 57 ECAB 494 (2006).

4

In reports dated February 10 and March 24, 2015, Dr. Alexander found that examination
of appellant’s right shoulder revealed mild tenderness to palpation over the AC joint and full
range of motion but with some discomfort and a positive Hawkins’ sign. On December 30, 2014
he opined that appellant’s right shoulder condition was causally related to the repetitive reaching
that he performed at his job. However, Dr. Alexander failed to provide a rationalized opinion
explaining how factors of appellant’s federal employment, such as twisting, bending, lifting, and
reaching with the right arm, caused or aggravated his right shoulder condition. He noted that
appellant’s condition occurred while he was at work, but such generalized statements do not
establish causal relationship because they merely repeat appellant’s allegations and are
unsupported by adequate medical rationale explaining how his physical activity at work actually
caused or aggravated the diagnosed conditions.11 The Board has held that the mere fact that
appellant’s symptoms arise during a period of employment or produce symptoms revelatory of
an underlying condition does not establish a causal relationship between his condition and his
employment factors.12 Dr. Alexander failed to provide a rationalized opinion explaining how
factors of appellant’s federal employment, such as twisting, bending, lifting, and reaching with
the right arm, caused or aggravated his right shoulder condition. Thus, the Board finds that
Dr. Alexander’s reports are insufficiently rationalized to establish that appellant’s condition was
caused or aggravated by factors of his federal employment.
In his October 2, 2014 narrative statement, appellant alleged that he sustained an
employment-related right shoulder injury on May 12, 2004 while reaching out to grab the handle
of a mailbox and pulling it open and another employment-related right shoulder injury on
April 17, 2007 while repeatedly reaching longer distances to insert mail into mailboxes due to a
snow storm. The Board finds, however, that OWCP has not previously accepted a right shoulder
condition in appellant’s case.
In support of his claim, appellant submitted physical therapy notes dated August 14
through October 1, 2014. Physical therapists are not considered “physicians” under FECA.13
This evidence thus does not constitute competent medical evidence as it does not contain
rationale by a physician relating his disability to his employment.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to the accepted employment factors, he
failed to meet his burden of proof to establish a claim.
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.

11

See K.W., Docket No. 10-98 (issued September 10, 2010).

12

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

13

See 5 U.S.C. § 8101(2). Section 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 also Paul Foster, 56 ECAB 208, 212 n.12 (2004).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
developed a right shoulder condition in the performance of duty causally related to factors of his
federal employment.
ORDER
IT IS HEREBY ORDERED THAT the May 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2016
Washington, DC

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

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

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

6