United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
C.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Leavenworth, KS, Employer
_________________________________________

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

Docket No. 10-421
Issued: October 22, 2010

Case Submitted on the Record

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

JURISDICTION
On November 30, 2009 appellant filed a timely appeal from the November 16, 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 over the merits.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty, causally related to factors of her federal employment.
FACTUAL HISTORY
On October 28, 2008 appellant, then a 51-year-old supervisory medical administrative
program specialist, filed an occupational disease claim alleging that she sustained a rash on her

upper body, a raspy cough and dry mouth after moving into a new office.1 She alleged that she
first became aware of the condition on October 20, 2008. Appellant did not stop work.
In letters dated November 17, 2004, the Office requested additional factual and medical
evidence from appellant and the employing establishment.
In an undated response received by the Office on January 2, 2009, appellant noted that
her first day of work was October 19, 2008. She noted that her rash began on October 20, 2008
together with a raspy cough and dry mouth. Appellant stated that her throat felt like it was
closing shut and she had to take Benadryl.
In an October 28, 2008 e-mail, Jacqueline Roemer, a supervisor, confirmed that the office
space was not entirely cleaned before employees moved in. She advised that it was quite dusty
and needed additional cleaning. In a January 6, 2008 e-mail, Sherrie Mailen, the chief of health
administration, noted that appellant was moved into a new office on October 16 or 17, 2008. At
that time, appellant was on leave and returned on October 18, 2008 to the new office.
Ms. Mailen confirmed that the office was not cleaned prior to relocating and that additional
cleaning was needed.
In an October 28, 2008 report, Dr. Alexander Hallock, a Board-certified internist, noted
that appellant reported to the emergency department with an itchy rash which occurred at work
and resolved after going home. He diagnosed macular rash. In notes also dated October 28,
2008, a nurse advised that appellant related that her symptoms began when she moved to a
different office. The Office received nurse notes dated November 17, 24 and December 1, 2008.
Appellant also submitted a November 25, 2008 respiratory allergy profile test results.
The employing establishment submitted laboratory reports dated November 11 and 12,
2008 pertaining to microbial testing and sampling. The reports found no significant interior
mold.
In a February 4, 2009 decision, the Office denied appellant’s claim finding that she did
not submit sufficient medical evidence to establish that the claimed rash or allergic condition was
related to the accepted move to a new office.
Appellant requested reconsideration on April 20 and June 1, 2009.
Dr. Hallock saw her rash and stated that it was environmental.

She noted that

In a November 24, 2008 report, Dr. Chet Strehlow, Board-certified in family medicine,
noted that appellant was exposed to mold in her office. Appellant related that shortly after
getting to the office, she would break out in hives, feel tightness in her chest and numbness on
the left side of her face. Dr. Strehlow noted that she indicated that the symptoms would be
relieved at home and recur once she returned to the building. He diagnosed “allergic reaction,
possible mold exposure.” In a December 1, 2008 report, Dr. Strehlow reiterated the history of

1

The record reflects that appellant has several claims with the Office. She has an appeal on a separate issue in a
different claim that is pending under Docket No. 10-214.

2

injury and diagnosed “probable recent allergic reaction, unknown etiology” and “mold exposure,
unknown correlation.”
By decision dated July 24, 2009, the Office denied modification of its February 4, 2009
decision. It found that the medical evidence did not establish a causal relationship between the
diagnosed condition and factors of her federal employment.
Appellant submitted additional evidence, including previously submitted reports. The
Office received nurse notes dated October 28, 2008 to July 8, 2009.
In a July 16, 2009 e-mail, Ms. Mailen confirmed that appellant was relocated to her
current office space in December 2008. The space had not been thoroughly cleaned prior to the
move, and appellant had expressed concerns about being ill with upper respiratory symptoms and
headache. Appellant was removed from the space and it was cleaned and painted; however,
upon returning to the space, she again began to experience the respiratory symptoms. She noted
that the space had water leaks above the ceiling, which had been repaired.
In a July 31, 2009 e-mail, appellant reiterated that she experienced dry mouth, headaches
and a raspy cough whenever she was in her new office.
The Office received an indoor air quality assessments dated July 26 and August 22, 2009
that revealed the current ventilation system was not adequate to keep the temperature, relative
humidity and dew point within recommended limits. The employing establishment was advised
to increase the flow of fresh air within the building.
Appellant requested reconsideration on October 1, 2009. She enclosed a September 2,
2009 note from a nurse.
On September 2, 2009 Dr. Vivek Sahgal, a Board-certified internist, noted that appellant
was seen for complaints of shortness of breath and a substernal chest pressure-like sensation.
Appellant related that she had developed her condition since moving to a new office where there
was “a lot of mold” and where her coworkers were also sick. Dr. Sahgal related that appellant
believed that she “may have had mold exposure.” He discussed this at length with appellant and
related that “a mold infection of the lungs is very unlikely as the immune system is intact.”
Dr. Sahgal diagnosed chest pain and atypical features and a probable anxiety episode. He
explained that the “likelihood of invasive mold or fungal infection is extremely low in a patient
who is immunocompetent.” Dr. Sahgal provided a clinical report of the same date which
revealed precordial chest pain.
In a September 3, 2009 report, Dr. Ravi Bhagat, a Board-certified internist, noted that
appellant presented to the emergency room with dyspnea. He noted that she had risk factors for
pulmonary embolism given her history of estrogen use and a recent three-hour flight. Dr. Bhagat
advised that appellant had a history of mild nonobstructive coronary artery disease, mild sinus
tachycardia, hypertension, dyslipidemia and history of fibromyalgia.
By decision dated November 16, 2009, the Office denied modification of the February 4,
2009 decision.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 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.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment, nor
the belief that her condition was caused, precipitated or aggravated by her employment, is
sufficient to establish causal relationship.6 Causal relationship must be established by
rationalized medical opinion evidence.
ANALYSIS
The Board finds that appellant failed to establish that she developed an allergic condition
in the performance of duty. The employing establishment confirmed that she was moved to a
2

5 U.S.C. §§ 8101-8193.

3

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

4

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

5

Id.

6

Id.

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new office which was not adequately cleaned prior to the move but subsequently cleaned after
the move. The employing establishment provided copies of environmental testing that found no
significant interior mold. The July 26 and August 22, 2009 results of air quality assessments at
appellant’s work site were indicative of an inadequate ventilation system. The employing
establishment was advised to increase the flow of fresh air within the building. Appellant,
however, has not established that her rash or other allergic conditions were causally related to
this exposure in her employment.
Appellant submitted medical reports documenting her rash symptoms.
Causal
relationship is a medical question that can generally be resolved only by rationalized medical
opinion evidence.7 The reports submitted by appellant do not adequately explain how factors of
her employment caused or aggravated a rash or other allergic conditions.
On October 28, 2008 Dr. Hallock noted that appellant reported to the emergency
department with an itchy rash which occurred at work and resolved after going home. He
diagnosed macular rash. However, Dr. Hallock did not offer any opinion regarding the cause of
appellant’s condition. He did not address how any work exposure on or after October 19, 2008
caused the symptoms he treated. Medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.8
In a November 24, 2008 report, Dr. Strehlow noted that appellant was exposed to mold in
her office. Appellant described breaking out in hives, feel tightness in her chest and numbness
on the left side of her face when she returned to her building. Dr. Strehlow found that appellant
had an “allergic reaction, possible mold exposure.” The Board notes that he did not offer any
specific opinion regarding the cause of appellant’s condition. The opinion that appellant had
possible mold exposure is speculative or equivocal in character and of diminished probative
value.9 Furthermore, Dr. Strehlow opined in his December 1, 2008 report that the cause of her
condition was unknown. He diagnosed “probable recent allergic reaction, unknown etiology”
and “mold exposure, unknown correlation.” As Dr. Strehlow opined that the etiology of
appellant’s condition was unknown, his reports are of limited probative value.
In reports dated September 2, 2009, Dr. Sahgal noted that appellant was seen with
complaints of shortness of breath and substernal chest pressure like sensation. Appellant related
that she believed that her condition developed since moving to a new office where there was “a
lot of mold” and where her coworkers were also sick.10 However, Dr. Sahgal explained that “a
mold infection of the lungs is very unlikely as the immune system is intact.” He attributed
appellant’s condition to a probable anxiety episode. Dr. Sahgal opined that the “likelihood of
7

See Steven S. Saleh, 55 ECAB 169 (2003); Robert G. Morris, 48 ECAB 238 (1996).

8

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009).

9

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009).

10

Dr. Sahgal’s finding that appellant encountered “a lot” of mold at work appears to be inaccurate. A
November 12, 2008 report of microbial sampling and testing at the employing establishment reported total fungal
spores in the tested locations to be at or below outdoor ambient levels.

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invasive mold or fungal infection is extremely low in a patient who is immunocompetent.” He
did not find that specific work exposures at particular time periods caused or aggravated her
claimed conditions.
A September 3, 2009 report from Dr. Bhagat noted that appellant presented to the
emergency room with dyspnea. He did not offer any opinion that appellant suffered a rash or
cough from work-related exposures. Dr. Bhagat’s report is of limited probative value. The other
medical reports submitted by appellant do not address causal relationship.
Appellant also provided several nurse notes. However, health care providers such as
nurses are not physicians under the Act. Thus, their opinions on causal relationship do not
constitute rationalized medical opinions and have no weight or probative value.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 her condition and her employment factors.12
The Board finds that the medical reports of record are insufficient to establish a causal
relationship between appellant’s diagnosed conditions and accepted employment factors. The
physicians did not provide sufficient explanation to support how her condition was caused by
exposure to dusts or molds in appellant’s workplace.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that that she
sustained an injury in the performance of duty, causally related to factors of her federal
employment.

11

Jane A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C. § 8101(2).

12

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

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 16, 2009 is affirmed.
Issued: October 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 19-1354
Issued: March 13, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 28, 2019 appellant filed a timely appeal from a December 3, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The most recent merit
decision was a Board decision dated March 13, 2018, which became final 30 days after issuance,
and is not subject to further review.2 As there was no merit decision by OWCP within 180 days
of the filing of this appeal, pursuant 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.
1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from December 3, 2018, the date of OWCP’s last decision, was
June 1, 2019. As this fell on a Saturday, appellant had until the following business day, Monday, June 3, 2019, to file
the appeal. Since using June 4, 2019, the date the appeal was received by the Clerk of the Appellate Boards 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 May 28, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

20 C.F.R. § 501.6(d). See G.G., Docket No. 18-1074 (issued January 7, 2019).

3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On February 11, 2008 appellant, then a 51-year-old administrative assistant, filed an
occupational disease claim (Form CA-2) alleging that she developed constant pain in both elbows,
hands, arms, and her neck and back as a result of her employment duties. She indicated that she
first became aware of her condition and first realized that it resulted from her employment on
January 15, 2008. On the reverse side of the claim form, the employing establishment reported
that appellant was last exposed to the conditions alleged to have caused her conditions on
“February 12, 2008.” OWCP accepted her claim for bilateral lateral epicondylitis, bilateral medial
epicondylitis, sciatica, and neck sprain. It subsequently expanded acceptance of appellant’s claim
to include bilateral carpal tunnel syndrome.5 OWCP paid wage-loss compensation for total
disability on the periodic rolls, effective June 7, 2009.
On December 5, 2014 OWCP mailed appellant an EN1032 form for her completion. The
form instructed her to report all employment for which she received a salary, wages, income, sales
commissions, piecework, or payment of any kind. Appellant was also directed to report all selfemployment activities or involvement in business enterprises, including (but not limited to)
farming, sales work, operating a business, and providing services in exchange for money, goods,
or other services. The kinds of services that she was required to report included such activities as
carpentry, mechanical work, painting, contracting, child care, keeping books and records, and
managing and overseeing a business of any kind, including a family business. The form also
instructed appellant to report any work or ownership interest in any business enterprise, even if the
business lost money or if profits or income were reinvested or paid to another.
The cover letter for the EN1032 form included the following warning: “A false or evasive
answer to any question, or the omission of an answer, may be grounds for forfeiting your
compensation benefits and subject you to civil liability.” The forms contained certification clauses
which informed appellant of the consequences of not accurately reporting her employment

4

Docket No. 17-1362 (issued March 13, 2018).

5

Under OWCP File No. xxxxxx455, OWCP accepted appellant’s September 15, 2008 occupational disease claim
for cervical spondylosis without myelopathy or radiculopathy, cervical disc degeneration, lumbar spondylosis without
myelopathy or radiculopathy, lumbar spondylolisthesis, bilateral pes planus, neck sprain, bilateral medial and lateral
epicondylitis, and bilateral carpal tunnel syndrome as causally related to her employment duties. On September 1,
2010 OWCP combined the current case under OWCP File No. xxxxxxx045 with OWCP File No. xxxxxx455 with the
latter file as the master file.

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activities, such as being subjected to criminal penalties and losing the right to receive workers’
compensation benefits.
On December 27, 2014 appellant completed and signed the EN1032 form. In response to
the question of whether she worked for an employer for the past 15 months, she reported “No.”
Appellant also responded “No” to the question of whether she was self-employed or involved in
any business enterprise in the past 15 months.
On June 12, 2015 OWCP received a narrative statement from appellant. Appellant
indicated that she needed to correct an answer on the yearly paperwork form. She explained that
her husband had purchased a snow cone trailer and had added her name to the permits, trailer, and
limited liability company (LLC) just in case anything happened to him. Appellant reported that
she answered “No” on the EN1032 form and that she did not think about the snow cone trailer
until her husband opened it for business over the summer.
In a July 23, 2015 letter, the employing establishment’s Office of Inspector General (OIG)
informed OWCP that an investigation into appellant revealed that she had been operating her own
business and had failed to report the employment activities to OWCP. It requested that OWCP
issue a forfeiture decision due to her failure to disclose her employment.
On July 27, 2015 OWCP received an OIG summary report of investigation, which
indicated that during surveillance OIG agents had observed appellant working at a snow cone
business, carrying merchandise and buckets, unloading supplies from a trailer, writing on the
outside menu of the business, setting up tables and umbrellas, staking signs in the ground, and
serving snow cones to customers.
In a completed Form EN1032 dated February 7, 2016, appellant answered “yes” that she
was self-employed or involved in a business enterprise from the period April 1 to
September 1, 2015. She explained that she and her husband bought a snow cone stand and that
she bought and delivered cups, checked on the employees, and visited with customers a couple of
times. Appellant noted a pay rate of $8.00/hour.
In a February 7, 2016 narrative statement, appellant explained that her husband had added
her name to the title of the snow cone stand that he had bought because he had lung cancer. She
indicated that, while grocery shopping with her husband, they occasionally bought cups, straws,
or napkins and dropped them off at the snow cone stand. Appellant also related that the snow cone
stand was two blocks from her house and that she occasionally stopped by to see how the business
was operating and visit with customers. She reported that neither she nor her husband were paid
or received any wages while operating the snow cone stand.
By decision dated August 18, 2016, OWCP found that appellant had forfeited her wageloss compensation for the period September 27, 2013 through December 27, 2014 for failure to
report her business and employment activities or earnings on a Form EN1032. The forfeiture
period covered the 15 months preceding the December 27, 2014 EN1032 form. OWCP found that
appellant had knowingly provided false information about earnings and self-employment on that

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EN1032 form. It also determined that all compensation paid during the period would be considered
an overpayment subject to recovery in accordance with 5 U.S.C. § 8129.6
OWCP received a September 21, 2016 letter by Dr. John Ellis, Board-certified in family
medicine, who related that appellant had severe anxiety and depression due to the multiple
work-related injuries to her neck, upper extremities, lumbar spine, and feet. Dr. Ellis noted that
she was under the influence of narcotic pain medicine when she filled out the Form EN1032 in
2014 and opined that she was not fully aware of what she was signing.
In an October 18, 2016 report, Dr. Gary A. Rouse, a clinical psychologist, related that,
since his original evaluation in September 2008, appellant had continued to decline emotionally
and physically. He opined that she was not competent or knowledgeable enough to understand
what she was signing or attesting to or to understand the complexity or legal implications of
partnerships and LLCs.
In a January 31, 2017 statement, appellant explained that she had not received money from
her husband’s snow cone business nor did she perform any job activities. She reported that her
husband had recently dissolved the LLC.
On August 18, 2017 appellant requested reconsideration of the August 18, 2016 forfeiture
decision. In a statement dated August 9, 2017, she asserted that she believed that she was not
required to report her investment income as work activities since there was no evidence that the
three to five hours total spent at the business could be construed as integral to the operation of the
business. Appellant cited to FECA Procedure Manual 2.402.5 and S.G.,7 and contended that the
Board has distinguished between the reporting requirements for income received from passive
investment and earnings and income received by performing work and earning wages. She also
alleged that she was not fully aware when she signed the LLC documents due to her deteriorating
mental health, severe anxiety, and depression. Appellant also cited to B.Y.,8 alleging that the Board
had previously found that, in finding that a claimant forfeited compensation, OWCP could not rely
solely on video tape and summary submitted by the employing establishment’s OIG. She also
noted her disagreement with the OIG investigation and her interview with the OIG agents.

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By separate decision dated August 18, 2016, OWCP also issued a preliminary determination that appellant
received an overpayment of compensation in the amount of $43,832.60 for the period September 27, 2013 through
December 27, 2014 as a result of the forfeiture. It found that she was at fault in the creation of the overpayment
because she failed to report her business and employment activities or earnings from the snow cone business that she
owned with her husband. By decision dated December 12, 2016, OWCP finalized the preliminary overpayment
determination, finding an overpayment of compensation in the amount of $43,832.60 for the period September 27,
2013 to December 27, 2014. It also found that appellant was at fault in the creation of the overpayment, and therefore
was not eligible for waiver for recovery of the overpayment. On June 2, 2017 appellant filed an appeal to the Board
regarding the December 12, 2016 overpayment decision. By decision dated March 13, 2018, the Board affirmed the
December 12, 2016 OWCP decision, which finalized the overpayment of compensation in the amount of $43,832.60
for the period September 27, 2013 to December 27, 2014 and found that she was at fault in the creation of the
overpayment.
7

Docket No. 11-0942 (issued April 4, 2012).

8

Docket No. 11-1798 (issued July 24, 2012).

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By decision dated November 17, 2017, OWCP denied modification of the August 18, 2016
forfeiture decision.
On November 20, 2018 OWCP received appellant’s appeal request form, which requested
reconsideration of the November 17, 2017 decision. In a narrative statement, appellant alleged
that OWCP ignored many issues, including her arguments concerning why any of the OIG
interviews or photographs were applicable. She also contended that OWCP erred by ignoring
evidence and arguments concerning whether her comprehension was impaired. Appellant cited to
the Board’s holding in C.G.,9 and alleged that she had provided probative supporting evidence that
she would have difficulty understanding the obligations required on a Form EN1032.
Appellant also resubmitted Dr. Ellis’ September 21, 2016 report and Dr. Rouse’s
October 28, 2016 report.
OWCP received a statement from appellant dated June 1, 2017. Appellant alleged that
OWCP had not supported its forfeiture determination because there was no evidence establishing
that she knowingly failed to report self-employment or earnings on the Form EN1032 signed on
December 27, 2014. She explained that the three to five hours spent at the business were not
considered valuable on the open labor market and that her activities could not be construed as
integral to the operation of the business. Appellant also asserted that, although the business was
licensed in May 2014, it had not opened for business in April 2015. She further indicated that the
file contained statements from her psychologist who noted that she was not fully aware of what
she was signing when she signed the LLC.
By decision dated December 3, 2018, OWCP denied appellant’s request for
reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.10 This discretionary authority, however, is subject
to certain restrictions.11 One such limitation is that the request for reconsideration must be received
by OWCP within one year of the date of the decision for which review is sought.12 Timeliness is
determined by the document receipt date of the request for reconsideration as is indicated by the
“received date” in the Integrated Federal Employees’ Compensation System (iFECS).13
9

Docket No. 11-0454 (issued May 22, 2012).

10

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
11

20 C.F.R. § 10.607; S.C., Docket No. 18-0126 (issued May 14, 2019).

12
Id. at § 10.607(a); L.W., Docket No. 18-1475 (issued February 7, 2019). 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. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(February 2016).
13

Id. at Chapter 2.1602.4(b).

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Imposition of this one-year filing limitation does not constitute an abuse of discretion.14 OWCP
may not deny a reconsideration request solely because it was untimely filed. When a claimant’s
request for reconsideration is untimely filed, it must nevertheless undertake a limited review to
determine whether it demonstrates clear evidence of error.15 If an application demonstrates clear
evidence of error, OWCP will reopen the case for merit review.16
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.17 It is not enough merely to demonstrate that the
evidence could be construed so as to produce a contrary conclusion.18 The evidence submitted
must not only be of sufficient probative value to create a conflict in medical opinion or demonstrate
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.19
OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard.20
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.21
ANALYSIS
The Board finds that this case is not in posture for decision.
The most recent merit decision of OWCP was the November 17, 2017 decision. One year
from November 17, 2017 elapsed on November 17, 2018. As November 17, 2018 fell on a
Saturday, appellant had until the next business day on Monday, November 19, 2018 to file her
reconsideration request.22 OWCP received her reconsideration request on November 20, 2018
which was more than one year after the November 17, 2017 decision. Appellant’s request
14

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
15

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
16
L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 12 at Chapter 2.1602.5 (February 2016).
17

20 C.F.R. § 10.607(b); P.L., Docket No. 18-0813 (issued November 20, 2018); Fidel E. Perez, 48 ECAB 663,
665 (1997).
18

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

19

V.L., Docket No. 17-1493 (issued September 12, 2018); Annie L. Billingsley, 50 ECAB 210 (1998).

20

Supra note 12 at Chapter 2.1602.5a (October 2011).

21

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

22

Supra note 12 at Chapter 2.1602.4 (February 2016).

6

therefore was untimely filed.23 The proper standard of review for an untimely reconsideration
request is the clear evidence of error standard.24 In denying her request, OWCP applied the
standard of review for timely requests for reconsideration.25 As it applied the incorrect standard
of review to the untimely request for reconsideration, the Board will set aside OWCP’s
December 3, 2018 decision and remand the case for proper review under the clear evidence of
error standard as required by regulations.26
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further action
consistent with this decision of the Board.
Issued: March 13, 2020
Washington, DC

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

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

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

23

See E.H., Docket No. 19-0859 (issued December 10, 2019).

24

Supra note 15.

25

See L.W., Docket No. 16-1202 (issued January 25, 2018); H.L., Docket No. 13-2077 (issued March 20, 2014).

26

See 20 C.F.R. § 10.607(b); see also M.C., Order Remanding Case, Docket No. 18-0866 (issued March 26, 2019).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pennsville, NJ, Employer
__________________________________________

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)
)
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)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1151
Issued: November 7, 2017

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 May 4, 2017 appellant, through counsel, filed a timely appeal from a January 19,
2017 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.
ISSUE
The issue is whether appellant met her burden of proof to establish a back injury causally
related to the accepted March 19, 2015 employment incident.
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.

FACTUAL HISTORY
On April 14, 2015 appellant, then a 48-year-old custodian, filed a traumatic injury claim
(Form CA-1) alleging that on March 19, 2015 she experienced low back pain radiating into her
legs after lifting filled banker boxes. She stopped work on April 8, 2015.
OWCP previously accepted that appellant sustained a displaced lumbar and intervertebral
disc as a result of a November 3, 2005 work injury, assigned File No. xxxxxx565. Under that
claim, she returned to her usual work duties on March 12, 2007.3
A September 6, 2006 magnetic resonance imaging (MRI) scan showed an unchanged L5S1 disc herniation. An April 13, 2015 MRI scan revealed disc desiccation with an annual disc
bulge at L5-S1, a cervical herniation with impingement on the thecal sac and S1 nerve roots, and
left foramen narrowing.
Dr. John A. Gagliardi, a chiropractor, asserted in an April 7, 2015 disability certificate
that appellant was totally disabled until April 21, 2015. On April 20, 2015 Dr. John R. Amrien,
who specializes in family medicine, found that she could resume work on May 20, 2015.
Appellant, in an undated statement received by OWCP on April 23, 2015, related that she
felt a pull in her back getting rid of filled banker boxes. She asked her supervisor for help since
her back hurt. Appellant continued working because she believed that she had only sprained her
back, but the continued work “seemed to aggravate it more.”
In a return to work slip, Dr. Amrien indicated that appellant could resume work on
June 2, 2015.
On June 12, 2015 OWCP advised appellant that it had initially paid a limited amount of
medical expenses as her injury was uncontroverted and seemed minor. It was now adjudicating
the merits of her claim. OWCP requested that appellant submit additional factual and medical
evidence, including a report from her attending physician addressing the causal relationship
between a medical condition and the identified work incident.
Dr. Amrien, on June 30, 2015, advised that appellant was unable to work pending
surgery.
In response to OWCP’s request for additional information, appellant related that on
March 19, 2015 she experienced pain in her lower back radiating into her legs, but continued
working with medication and therapy. She had a prior history of back and shoulder pain which
lessened after chiropractic adjustments. Appellant specified that she was claiming a traumatic
injury.
On July 9, 2015 Dr. Amrien indicated that he initially treated appellant on March 27,
2015 “for low back pain which occurred while lifting a heavy box off the floor at work.” He
noted that a lumbar spine MRI scan showed a disc herniation at L5-S1. Dr. Amrien related, “It is
3

OWCP File No. xxxxxx565 is not before the Board on the present appeal.

2

my opinion that the lifting injury at work caused the L5-S1 disc herniation in [appellant].” He
recommended surgery.
By decision dated July 15, 2015, OWCP denied appellant’s traumatic injury claim. It
found that the medical evidence of record was insufficient to establish a diagnosed condition as a
result of the accepted work incident. Thus, fact of injury was not established.
In a report dated June 1, 2015, received by OWCP on July 31, 2015, Dr. William C.
Welch, a Board-certified neurosurgeon, noted that appellant had a history of lumbar
radiculopathy. He reviewed her current complaints of low back pain radiating into the right
more than left extremity beginning March 2015 when she “was lifting a box of magazines off the
floor into a hamper to take to [the] dumpster.” Dr. Welch diagnosed right sciatica from the S1
nerve root due to a disc rupture at L5-S1 on the right. He recommended a discectomy at L5-S1
on the right.
On September 28, 2015 Dr. Amrien discussed the March 27, 2015 work incident and the
medical treatment received by appellant subsequent to the incident. He related, “It is my medical
opinion, within a reasonable amount of medical certainty, that there is a direct cause and effect
between [appellant’s] back injury and her bending over and lifting heavy boxes off the floor at
work on March 19, 2015. There are no other contributing factors.” Dr. Amrien indicated that
she required surgery.
Appellant, on October 19, 2015, requested reconsideration. She submitted an undated
statement from her supervisor, who advised that appellant had requested assistance on March 19,
2015 due to back pain.
By decision dated January 12, 2016, OWCP denied modification of its July 15, 2015
decision. It noted that appellant had a prior history of an L5-S1 herniation. OWCP found that
she had not submitted medical evidence based on a complete medical history addressing
causation.
In a December 3, 2015 report, received by OWCP on March 3, 2016, Dr. Welch obtained
a history of back pain radiating into her left leg and foot after a March 2015 work incident. He
diagnosed “a history of lumbar radiculopathy in the setting of L5-S1 disc” and recommended a
left L5-S1 discectomy.
On January 8, 2016 Dr. Welch performed a left L5 hemilaminectomy with partial
facetectomy and extensive foraminotomies at L5 and S1. In a February 4, 2016 discharge
summary, he noted that appellant had a history of an L4 nucleoplasty in 2004. Dr. Welch
indicated that her symptoms of low back pain with left more than right leg pain began after a
March 2015 work incident.
In a March 28, 2016 duty status report (Form CA-17), Dr. Amrien diagnosed a herniated
disc and checked the box marked “yes” that the history of injury corresponded to “lifting full
banker boxes from the floor into hampers.” He provided work restrictions.
Electrodiagnostic testing performed April 13, 2016 revealed S1 radiculopathy greater on
the left side.
3

Appellant, on December 19, 2016 requested reconsideration. She related that on
November 3, 2005 she had herniated her L5-S1 disc at work, assigned File No. xxxxxx565.
Appellant returned to her usual employment in 2007 after surgery, but continued to receive
periodic chiropractic treatment. She related that she worked without limitations until March 19,
2015 when she lifted full banker boxes off the floor.
By decision dated January 19, 2017, OWCP denied modification of its January 12, 2016
decision. It determined that appellant had not submitted rationalized medical evidence
supporting that she sustained a diagnosed condition due to the March 19, 2015 work incident.
On appeal counsel asserts that OWCP had accepted lumbar disc displacement on
November 3, 2005 under File No. xxxxxx565 and authorized surgery in November 2006,
following which she returned to a modified position. He maintained that she submitted sufficient
factual and medical evidence to establish an aggravation of her preexisting low back condition
on March 19, 2015. Counsel notes that the employing establishment did not controvert the claim
and that appellant’s supervisor submitted a statement confirming that she sustained low back
pain on March 19, 2015.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof 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 filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.8 An employee may establish that the employment

4

5 U.S.C. § 8101 et seq.

5

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

7

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

8

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

4

incident occurred as alleged, but fail to show that her disability and/or condition relates to the
employment incident.9
ANALYSIS
Appellant alleged an injury to her back on March 19, 2015 after lifting full banker boxes
while in the performance of duty. She has established that the work incident occurred at the
time, place, and in the manner alleged. The issue, consequently, is whether the medical evidence
of record establishes an injury as a result of this incident.
The Board finds that appellant has not established that the March 19, 2015 employment
incident resulted in an injury. The determination of whether an employment incident caused an
injury is generally established by medical evidence.10
Appellant provided evidence from Dr. Amrien. Dr. Amrien, in a July 9, 2015 report,
discussed his treatment of appellant beginning March 27, 2015 for pain in her low back after she
lifted a heavy box at work. He opined that the lifting resulted in a disc herniation at L5-S1. On
September 28, 2015 Dr. Amrien again reviewed the history of the March 27, 2015 incident and
advised that lifting the boxes off the floor on March 19, 2015 directly caused appellant’s back
injury. He noted that there were no other “contributing factors.” Appellant, however, had a prior
history of a disc herniation at L5-S1. In order to establish causal relationship, a physician’s
opinion must be based on a complete and accurate factual and medical background and must be
supported by medical rationale.11 Dr. Amrien did not demonstrate knowledge of appellant’s
prior disc herniation at L5-S1 and thus did not rely on a complete history in reaching his
conclusion. Therefore, consequently, his report is of diminished probative value.12 Further, he
did not provide rationale for his causation finding. Medical evidence that provides a conclusion,
but does not offer any rationalized medical explanation regarding the cause of an employee’s
condition, is of limited probative value on the issue of causal relationship.13
Dr. Amrien, in a form report dated March 28, 2016, diagnosed a herniated disc and
indicated by a checkmark in a box that the history of injury corresponded to appellant
experiencing low back pain after lifting boxes. He provided work restrictions. The Board has
held, however, that an opinion on causal relationship which consists only of a physician checking
a box marked “yes” to a medical form question on whether the claimant’s condition was related
to the history given is of little probative value. Without any explanation or rationale for the
conclusion reached, such report is insufficient to establish causal relationship.14 Other reports
9

Id.

10

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

11

See Roger Dingess, 47 ECAB 123 (1995).

12

See Joseph M. Popp, 48 ECAB 624 (1997).

13

See J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box “yes” in a form report, without additional
explanation or rationale, is insufficient to establish causal relationship).
14

5

from Dr. Amrien are insufficient to establish the claim as they do not address the cause of
appellant’s condition. 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 relationship15
On June 1, 2015 Dr. Welch evaluated appellant for low back pain with radiculopathy into
the right more than left lower extremity with symptoms beginning after she lifted a box of
magazines at work in March 2015. He noted that she had a history of lumbar radiculopathy.
Dr. Welch diagnosed sciatica on the right from the S1 nerve root as a result of a right L5-S1
ruptured disc. While he described the March 2015 lifting incident, he did not specifically relate
the L5-S1 disc herniation with sciatica to appellant’s employment activities in March 2015 and
thus his opinion is insufficient to meet her burden of proof.16
On December 3, 2015 Dr. Welch discussed appellant’s symptoms of back pain radiating
into the left lower extremity after a March 2015 work injury. He diagnosed a history of lumbar
radiculopathy in the L5-S1 disc and recommended surgery, which he performed on
January 8, 2016. In the discharge summary following surgery, Dr. Welch indicated that
appellant’s symptoms of low back pain with radiculopathy began after a March 2015
employment injury. The Board has held, however, that the mere fact that a disease or condition
manifests itself during a period of employment does not raise an inference of causal relationship
between the condition and the employment.17 Dr. Welch did not specifically attribute the L5-S1
radiculopathy to the March 19, 2015 work injury or provide a reasoned opinion regarding how
the March 19, 2015 work incident caused the diagnosed condition, and thus his report is of little
probative value.18
Appellant submitted disability certificates from a chiropractor, Dr. Gagliardi. Section
8101(2) of FECA, however, 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….”19
Dr. Gagliardi did not diagnose a subluxation as demonstrated by x-ray, he is not considered a
“physician” as defined under FECA and his report is of no probative value.20
On appeal counsel contends that the factual and medical evidence establishes that
appellant sustained an aggravation of her preexisting low back condition on March 19, 2015,
noting that OWCP previously accepted a lumbar disc displacement on November 3, 2005 under
File No. xxxxxx565. As discussed, however, appellant did not submit medical evidence based

15

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

16

See A.D., 58 ECAB 149 (2006).

17

D.E., 58 ECAB 448 (2007); Roy L. Humphrey, 57 ECAB 238 (2005).

18

See W.A., Docket No. 16-1544 (issued May 10, 2017).

19

5 U.S.C. § 8101(2); see also Michelle Salazar, 54 ECAB 523 (2003).

20

Isabelle Mitchell, 55 ECAB 623 (2004).

6

on a complete and accurate medical history sufficient to demonstrate a causal connection
between the March 19, 2015 work incident and her claimed back condition.21
Counsel also asserts that the employing establishment did not controvert the claim and
that appellant’s supervisor submitted a statement confirming that she sustained low back pain on
March 19, 2015. As discussed, however, appellant has established that the March 19, 2015
incident occurred as alleged. The relevant issue is whether the medical evidence is sufficient to
establish an injury due to the accepted employment incident, which it does not.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a back
injury causally related to the accepted March 19, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the January 19, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2017
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
21

See S.H., Docket No. 16-1227 (issued February 9, 2017).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
U.S. POSTAL SERVICE, SUMMERALL
STATION, Aiken, SC, Employer
__________________________________________

)
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)
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)

Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0935
Issued: February 19, 2021

Case Submitted on the Record

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

JURISDICTION
On March 25, 2020 appellant, through counsel, filed a timely appeal from a September 27,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the September 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
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective January 9, 2018, as she refused an
offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On April 8, 2003 appellant, then a 46-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 5, 2003 she sustained a back injury when her vehicle was
struck by another motor vehicle while in the performance of duty. She stopped work that day.
OWCP accepted the claim for lumbar spinal stenosis, displacement of lumbar intervertebral disc
without myelopathy, and sacroiliitis. It paid appellant wage-loss compensation on the
supplemental rolls as of May 30, 2003 and on the periodic rolls, as of May 31, 2015.
At the request of OWCP, appellant underwent several second opinion examinations. A
November 9, 2015 statement of accepted facts (SOAF) reported the accepted conditions as lumbar
spinal stenosis, herniated lumbar discs, and sacroiliitis. It also noted that under closed OWCP
claim, OWCP File No. xxxxxx633, date of injury August 2, 2002, a left hip strain had been
accepted. This SOAF noted that it superseded all previously issued SOAFs. No other medical
conditions, preexisting, concurrent or nonwork related, were mentioned.4
In a report dated December 1, 2015, second opinion physician Dr. John B. Bieltz, an
osteopath specializing in orthopedic surgery, reviewed the November 9, 2015 SOAF and the
medical record. He noted that appellant was in a pain management program and took multiple
medications. Dr. Bieltz diagnosed lumbar spondylosis and degenerative disc disease with chronic
pain and lumbar spinal stenosis. He opined that appellant’s diabetes and obesity aggravated her
chronic back issue. Dr. Bieltz also found that her subjective complaints significantly outweighed
her objective findings. He opined that appellant could perform sedentary work for no more than
four hours per day. Dr. Bieltz noted that he was concerned with the amount of medication she was
on and whether she would be able to perform cognitive-type activities. In his December 1, 2015
work capacity evaluation (Form OWCP-5c), he opined that appellant had reached maximum
medical improvement and that she had permanent restrictions of sitting no more than three to four
hours, pushing, pulling and lifting no more than 10 pounds, and operating a motor vehicle no more
than one to two hours a day. He further opined that she should not perform any reaching above
shoulder, twisting, bending/stooping, squatting, kneeling, or climbing activities.
In a February 22, 2016 letter, OWCP requested appellant’s treating physician, Dr. W.
Blane Richardson, a Board-certified internist, comment on Dr. Bieltz’s second opinion report. On
March 2, 2016 Dr. Richardson reviewed the report from Dr. Bieltz and concurred with his
assessment of appellant’s work capacity.
In his most recent report of record dated May 3, 2016, Dr. Richardson continued to
prescribe medication for appellant’s lumbar radiculitis, lumbar spondylosis, and degenerative disc
disease cervical spine conditions. He also noted that appellant was hesitant to have a spinal cord
stimulator implanted. The record reflects that OWCP had previously authorized Dr. Richardson’s
4

A March 7, 2013 SOAF indicated preexisting or concurrent medical conditions of diabetes mellitus.

2

request for appellant to undergo a psychological evaluation for a neurostimulator. In a
November 4, 2015 report, Dr. M. Kevin Turner, a clinical psychologist, opined that appellant was
a good candidate for placement of a neurostimulator. He diagnosed chronic pain disorder and
persistent depression.
OWCP referred appellant to Dr. Mary D. Hughes, a neurologist, for a second opinion
evaluation. It directed Dr. Hughes to use the November 9, 2015 SOAF as the only factual
framework for her medical opinion. In her October 31, 2016 report, Dr. Hughes opined that
appellant had ongoing residuals from the April 5, 2004 employment injury, but indicated that her
subjective complaints were not consistent with objective findings. She opined that appellant was
capable of performing sedentary work for up to four hours per day with a 15-pound lifting limit
and with frequent breaks to allow for position changes.
In a February 21, 2017 report, Dr. Mark D. Netherston, a Board-certified anesthesiologist,
diagnosed several lumbar spine conditions and Type 2 diabetes.
On March 7, 2017, OWCP expanded its acceptance of the claim to include a generalized
anxiety disorder condition and referred appellant for a second opinion evaluation with
Dr. Chiriyankandath S. Sebastian, a psychiatrist, to determine appellant’s disability status. In its
March 7, 2017 referral letter, OWCP indicated that the November 9, 2015 SOAF must be used as
the factual framework in addressing its questions regarding appellant’s ability to work. It also
noted that appellant’s accepted work-related medical conditions were: lumbar spinal stenosis,
lumbar herniated discs, sacroiliitis, and generalized anxiety disorder. Specific questions regarding
the generalized anxiety disorder condition were posed.
In an April 15, 2017 report, Dr. Sebastian opined that appellant’s accepted generalized
anxiety disorder condition had resolved. He advised that appellant suffered from nonwork-related
major depressive disorder, recurrent, moderate severity. Dr. Sebastian noted that while moderate
depression can impair productivity, it did not render appellant totally disabled from work. From a
psychiatric standpoint, he opined that appellant was capable of regular-duty work for at least four
hours a day with no restrictions based on any mental health issues.
On October 25, 2017 the employing establishment offered appellant a modified city carrier
position on October 25, 2017.5 The duties entailed: answering the telephone with headset,
package search and location duties, Enterprise Customer Care (ECC) case management and
Webcam duties. The physical requirements entailed: sitting for three hours per shift, standing for
one hour per shift and lifting occasionally 10 to 15 pounds. The work hours were from 8:00 a.m.
to 12:00 p.m. with off days of Sundays and rotating. The November 3, 2017 cover letter from the
employing establishment indicated that the revised modified job assignment was permanently
available to appellant as long as medically indicated.
In a November 13, 2017 letter, counsel objected to the offered position and set forth several
arguments. He also noted that surgical intervention was pending for her bilateral knee conditions.

5

A previous job offer dated June 29, 2017 as a modified city carrier was deemed invalid.

3

By letter dated December 5, 2017, OWCP advised appellant that the position offered was
suitable in accordance with the medical limitations provided by Dr. Hughes on October 18, 2016.6
It notified her that, if she failed to report to work or failed to demonstrate that the failure was
justified, pursuant to 5 U.S.C. § 8106(c)(2), her right to compensation for wage loss or a schedule
award would be terminated. OWCP afforded appellant 30 days to respond. No response was
received
On January 9, 2018 the employing establishment confirmed that the job offer remained
open and available for appellant.
By decision dated January 9, 2018, OWCP terminated appellant’s wage-loss compensation
and entitlement to schedule award benefits pursuant to 5 U.S.C. § 8106(c)(2) , effective that day.
It accorded the weight of the medical evidence to Dr. Hughes’ October 18, 2016 opinion that
appellant was capable of working up to four hours per day in a sedentary capacity.7
On January 23, 2018 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. He subsequently changed his request to a review of the written
record.
Evidence submitted included a December 18, 2017 note from the practice of Dr. R. Bauer
Vaughters, III, a Board-certified internist, that appellant was scheduled for surgery on January 10,
2018 and a January 15, 2018 laboratory order and clinical summary of appellant’s medications
from Dr. Vaughters.
By decision dated July 23, 2018, an OWCP hearing representative affirmed the January 9,
2018 decision. He found that the position was medically and vocationally suitable and was
reasonably available.
On July 22, 2019 appellant, through counsel, requested reconsideration. He continued to
argue that the offered position was not medically suitable based on the entirety of appellant’s
medical conditions. Counsel additionally argued that Dr. Hughes’ report dated October 31, 2016
was stale as it was almost a year old at the time of the October 25, 2017 job offer. No further
evidence was received.
By decision dated September 27, 2019, OWCP denied modification of the July 23, 2018
decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification of
compensation benefits.8 Section 8106(c)(2) of FECA provides that a partially disabled employee
who refuses or neglects to work after suitable work is offered to, procured by or secured for the
6
It noted that Dr. Hughes’ report was the most recent assessment on file as there were no recent assessments from
appellant’s treating physicians within the past 12 months.
7

OWCP noted that appellant’s treating physician had not commented on her work capacity in the past 18 months.

8

T.M., Docket No. 18-1368 (issued February 21, 2019); Linda D. Guerrero, 54 ECAB 556 (2003).

4

employee is not entitled to compensation.9 To justify termination of compensation, it must show
that the work offered was suitable and must inform appellant of the consequences of refusal to
accept such employment.10 Section 8106(c) will be narrowly construed as it serves as a penalty
provision, which may bar an employee’s entitlement to compensation based on a refusal to accept
a suitable offer of employment.11
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.12 Section
10.516 provides that OWCP shall advise the employee that it has found the offered work to be
suitable and afford the employee 30 days to accept the job or present any reasons to counter its
finding of suitability. If the employee presents such reasons and OWCP determines that the
reasons are unacceptable, it will notify the employee of that determination and that he or she has
15 days in which to accept the offered work without penalty. At that point in time, OWCP’s
notification need not state the reasons for finding that the employee’s reasons are not acceptable.13
The determination of whether an employee is capable of performing modified-duty
employment is a medical question that must be resolved by probative medical opinion evidence.14
All medical conditions, whether work related or not, must be considered in assessing the suitability
of an offered position.15
Once OWCP establishes that the work offered is suitable, the burden of proof shifts to the
employee who refuses to work to show that the refusal or failure to work was reasonable or
justified.16 OWCP’s procedures state that acceptable reasons for refusing an offered position
include medical evidence of inability to do the work.17

9
5 U.S.C. § 8106(c)(2); see J.K., Docket No. 19-0064 (issued July 16, 2020); Geraldine Foster, 54 ECAB
435 (2003).
10

A.F., Docket No. 19-0453 (issued July 6, 2020); Y.A., 59 ECAB 701 (2008).

11

J.K., supra note 9; Joan F. Burke, 54 ECAB 403 (2003).

12

20 C.F.R. § 10.517(a); J.S., Docket No. 19-1399 (issued May 1, 2020); Richard P. Cortes, 56 ECAB 200 (2004).

13

Id. at § 10.516; see S.M., Docket No. 19-1227 (issued August 28, 2020); see Melvin James, 55 ECAB 406 (2004).

14

C.M., Docket No. 19-1160 (issued January 10, 2020); Gloria J. Godfrey, 52 ECAB 486 (2001).

15

Id.

16

20 C.F.R. § 10.517(a).

17
Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a(4)
(June 2013); see J.K., supra note 9.

5

ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective January 9, 2018, for refusal of
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
OWCP accepted that appellant sustained lumbar spinal stenosis, displacement of lumbar
intervertebral disc, without myelopathy, and sacroiliitis as a result of the April 5, 2003 employment
injury. It subsequently expanded acceptance of the claim to include a generalized anxiety disorder.
On October 25, 2017 the employing establishment offered appellant a modified-duty letter
carrier position consistent with Dr. Hughes’ October 18, 2016 report. OWCP found that
Dr. Hughes’ report represented the weight of the medical evidence and established that the
modified-duty position was suitable.
OWCP’s procedures dictate that, when an OWCP medical adviser, second opinion
specialist, or impartial medical examiner renders a medical opinion based on a SOAF, which is
incomplete or inaccurate, or does not use the SOAF as the framework in forming his or her opinion,
the probative value of the opinion is seriously diminished or negated altogether.18
The Board finds that OWCP provided Dr. Hughes a deficient SOAF, which did not identify
the entirety of appellant’s diagnosed conditions.19
As previously noted, all conditions, whether work related or not, must be considered in
assessing the suitability of an offered position.20 OWCP did not update the November 9, 2015
SOAF to include the accepted generalized anxiety disorder condition. Furthermore, appellant has
other preexisting or concurrent medical conditions that were not identified in the SOAF. For
example, in his December 1, 2015 report, Dr. Bieltz reported that appellant had Type 2 diabetes
and obesity, which aggravated her chronic back conditions, and OWCP had previously
acknowledged the diabetic condition.21 In his November 4, 2015 report, Dr. Turner, diagnosed
chronic pain disorder and persistent depression. Prior to the suitable work termination the record
also contained evidence that appellant had bilateral knee conditions.
Based on the evidence of record, the Board finds that OWCP improperly determined that
the October 25, 2017 modified letter carrier position offered to appellant constituted suitable work
within her limitations and capabilities. The record does not substantiate that OWCP prepared a
proper SOAF and properly considered the entirety of her medical conditions before terminating
her wage-loss compensation and entitlement to a schedule award.22 Consequently, OWCP did not
18

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); see S.C., Docket No. 18-1011 (issued March 23, 2020).
19

See S.M., Docket No. 19-1227 (issued August 28, 2020); see also N.W., Docket No. 16-1890 (issued
June 5, 2017).
20

See supra note 15.

21

See supra note 4.

22

S.M., Docket No. 19-1227 (issued August 28, 2020).

6

meet its burden of proof to justify the termination of appellant’s compensation benefits pursuant
to 5 U.S.C. § 8106(c)(2).
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective January 9, 2018, as it improperly
determined that she refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 19, 2021
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
KANSAS CITY VA MEDICAL CENTER,
Kansas City, MO, Employer
__________________________________________

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

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Docket No. 20-0357
Issued: December 8, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

On December 3, 2019 appellant, through counsel, filed a timely appeal from an October 9,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards assigned Docket No. 20-0357.
On April 18, 2017 appellant, then a 54-year-old supply technician, filed a traumatic injury
claim (Form CA-1) alleging that on December 12, 2016 he sustained torn tendons and muscles of
his right rotator cuff, as well as other damage to his right shoulder, due to repetitive lifting and
stretching of his right arm above his head and outwardly while in the performance of duty.

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.

In a June 5, 2018 development letter, OWCP informed appellant of the deficiencies in his
claim, noting that he had not submitted sufficient evidence to establish that he actually experienced
the alleged employment incident.2 The letter was mailed to the address noted on the Form CA-1.
An August 2, 2018 telephone memorandum (Form CA-110) indicates that appellant
notified OWCP that he had moved and provided a new mailing address. He was advised that the
June 11, 2018 development letter would be reissued using the new address. In a letter dated
August 2, 2018, OWCP requested that appellant submit a written request to change his address. It
further issued a new development letter of even date to his updated mailing address.
By decision dated September 5, 2018, OWCP denied appellant’s traumatic injury claim,
finding that he had not established the factual component of his claim. The decision was mailed
to the address previously of record and subsequently returned to OWCP as undeliverable and
unable to forward on September 24, 2018. Despite receiving the September 5, 2018 as
undeliverable, there is no indication that OWCP attempted to reissue the decision to the correct
mailing address.
On October 3, 2019 appellant requested reconsideration of the September 5, 2018 decision.
He asserted that he had not received the decision until December 2018 as OWCP mailed it to his
old address. Appellant again requested that his mailing address be updated and provided the new
address.
By decision dated October 9, 2019, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP regulations provide that a copy of a decision shall be mailed to the employee’s last
known address.3 In the absence of evidence to the contrary, it is presumed that a notice mailed in
the ordinary course of business was received in due course by the intended recipient.4 This
presumption is commonly referred to as the “mailbox rule.”5 It arises when the record reflects that
the notice was properly addressed and duly mailed.6 However, as a rebuttable presumption, receipt
will not be assumed when there is evidence of nondelivery.7 Also, it is axiomatic that the
presumption of receipt does not apply where a notice is sent to an incorrect address.8

2

On June 11, 2018 OWCP’s June 5, 2018 development letter was returned as undeliverable and unable to forward.

3

D.C., Docket No. 13-1503 (issued December 17, 2013); J.R., Docket No. 13-0313 (issued August 15, 2013);
Newton D. Lashmett, 45 ECAB 181 (1993) (mailbox rule).
4

G.A., Docket No. 18-0266 (issued February 25, 2019); Kenneth E. Harris, 54 ECAB 502, 505 (2003).

5
See J.F., Docket No. 19-1893 (issued April 17, 2020); D.R., Docket No. 19-1899 (issued April 15, 2020);
Kenneth E. Harris, id.
6

Id.

7

M.C., Docket No. 12-1778 (issued April 12, 2013); see C.O., Docket No. 10-1796 (issued March 23, 2011).

8

M.C., id.

2

OWCP’s September 5, 2018 decision was sent to an incorrect address, and returned to
OWCP as undeliverable and unable to forward. Thus, appellant could not have timely requested
an appeal from an OWCP decision that he did not receive.9
As OWCP mailed appellant’s decision to an incorrect address, the Board finds that OWCP
improperly issued its September 5, 2018 decision.10 For this reason, the case will be remanded to
OWCP for proper issuance of a de novo decision.
IT IS HEREBY ORDERED THAT the October 9, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 8, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

9

K.N., Docket No 16-1412 (issued December 20, 2016); E.C., Docket No. 11-1174 (issued February 27, 2012).

10

See D.C., supra note 3; Tammy J. Kenow, 44 ECAB 619 (1993).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.D., Appellant
and
U.S. POSTAL SERVICE, LINCOLN STATION,
Tacoma, WA, Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-879
Issued: August 26, 2008

Case Submitted on the Record

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

JURISDICTION
On February 5, 2008 appellant filed a timely appeal from a February 20, 2007 decision of
the Office of Workers’ Compensation Programs that denied his claim and a January 24, 2008
decision that denied his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an employment-related back injury on September 18, 2006; and (2) whether the Office
properly refused to reopen appellant’s claim for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On September 18, 2006 appellant, then a 44-year-old clerk, alleged that he pinched a
nerve in his left leg when he picked something up at work and twisted. He stopped work on
September 27, 2006. Appellant submitted emergency room reports dated September 27, 2006 in

which Dr. Anita Yearley, Board-certified in emergency medicine, noted a history of increasing
left leg and back pain that started the previous week at work. A magnetic resonance imaging
(MRI) scan demonstrated an extruded disc fragment at L3-4 on the left and minimal protrusions
of the L4-5 and L5-S1 discs without appreciable central stenosis. Dr. Yearley diagnosed lumbar
radiculopathy. Reports dated September 28, 2006, signed by a physician’s assistant, noted
appellant’s complaints, the MRI scan findings and advised that he could not work. An
October 2, 2006 report noted a history of a work accident that occurred on September 18, 2006,
the MRI scan findings and that appellant was seen for refills of pain medication.1
In an October 12, 2006 report, Dr. Seth Joseffer, a Board-certified neurosurgeon, noted a
history that appellant reported that he had radiating left lower extremity pain since a lifting and
twisting incident at work on September 18, 2006 where he tossed parcels weighing up to
60 pounds. He reviewed the MRI scan findings and diagnosed left lower extremity pain and a
herniated disc at L3-4 on the left. Dr. Joseffer recommended an MRI scan of the left knee and
back surgery. An October 19, 2006 MRI scan of the left knee was reported as normal and in a
November 2, 2006 treatment note, he noted the left knee MRI scan findings and appellant’s
complaints of continued left leg and lower back pain. Dr. Joseffer diagnosed left lower
extremity dysesthetic pain from irritation of the nerve root ganglion and left herniated disc at
L3-4. Surgery was discussed. On October 21, 2006 Dr. Joseffer performed a left L3-4 far lateral
discectomy and on December 7, 2007 reported that appellant could return to light-duty work.
The employing establishment controverted the claim, noting that appellant began work
there on August 7, 2006. By letter dated January 17, 2006, the Office informed appellant that his
claim had initially been administratively handled, but that, as his medical bills had exceeded
$1,500.00, his claim would be formally adjudicated. It informed him that he should submit
evidence regarding the lifting incident and provide a detailed medical report that explained why
the diagnosed condition was caused or aggravated by the employment injury. Appellant was
given 30 days to respond.2 In a February 2, 2007 treatment note, Dr. Joseffer noted appellant’s
complaint of hypersensitivity on the inside of his left knee. Examination findings included full
strength, normal gait and a well-healed wound. Dr. Joseffer diagnosed status post left L3-4
discectomy, doing well except for some persistent dysesthetic pain.
By decision dated February 20, 2007, the Office denied the claim, finding that appellant
failed to establish fact of injury.
On January 10, 2008 appellant, through his attorney, requested reconsideration. Counsel
noted that the January 17, 2007 Office letter contained an error regarding the injury claimed in
that it referred to a right wrist injury. Medical evidence submitted with the reconsideration
request included duplicates of that previously of record, a decree regarding child support and
reports from Dr. Joseffer dated April 3 and December 7, 2007. Dr. Joseffer noted appellant’s
report that on September 18, 2006 he was lifting, twisting and tossing parcels that weighed up to
60 pounds and developed radiating left leg pain which progressively worsened such that he went
1

The physician’s signature is illegible.

2

The letter noted that appellant filed a claim for a right wrist condition, but the questions asked were in reference
to the claimed lifting incident.

2

to the emergency room where an MRI scan demonstrated a herniated disc at L3-4. He noted that
appellant underwent medically necessary microdiscectomy on November 21, 2006. Dr. Joseffer
concluded that, as documented by the MRI scan, the L3-4 disc herniation occurred at work on
September 18, 2006 and caused the disabling condition that required surgical intervention.
By decision dated January 24, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was duplicative or irrelevant as to
whether he sustained an injury at the time, place and in the manner alleged.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.4
Office regulations, at 20 C.F.R. § 10.5(ee) 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.5 To determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
3

5 U.S.C. §§ 8101-8193.

4

Gary J. Watling, 52 ECAB 278 (2001).

5

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

6

Gary J. Watling, supra note 4.

7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

3

supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.8 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.9
ANALYSIS -- ISSUE 1
The Board finds that the September 18, 2006 incident occurred as alleged. Appellant was
consistent in his description of the incident as found on the claim form and in the history
reported to the emergency room on September 27, 2006 and to Dr. Joseffer. In addition the
Office administratively accepted the claim. 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.10 The Board finds that the evidence of record is
sufficient to establish that appellant sustained a twisting, lifting incident at work on
September 18, 2006. However, the Board finds that the evidence of record submitted prior to the
February 20, 2007 Office decision is insufficient to establish that appellant sustained an injury
caused by this incident. The evidence included September 28, 2006 reports from a physician’s
assistant. Reports from a physician’s assistant, however, are not considered, probative medical
evidence as a physician’s assistant is not a physician as defined under the Act.11 As for the
October 2, 2006 report, the Board has held that medical reports lacking proper identification
cannot be considered as probative evidence in support of a claim.12 Appellant also provided
Dr. Yearley’s September 27, 2006 emergency room report and treatment notes from Dr. Joseffer
dated October 12, 2006 to February 2, 2007 and an operative report dated November 21, 2006.
Neither physician, however, provided an opinion addressing the cause of the diagnosed back
conditions. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.13 The
MRI scan studies did not provide any opinion regarding the cause of the diagnosed condition.14
To meet his or her burden of proof, an employee must submit a physician’s rationalized
medical opinion on the issue of whether the alleged injury was caused by the employment
incident.15 The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
8

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

9

Dennis M. Mascarenas, 49 ECAB 215 (1997).

10

Allen C. Hundley, 53 ECAB 551 (2002).

11

Ricky S. Storms, 52 ECAB 349 (2001).

12

D.D., 57 ECAB 734 (2006).

13

Willie M. Miller, 53 ECAB 697 (2002).

14

Id.

15

Gary J. Watling, supra note 4.

4

federal employment and such relationship must be support with affirmative evidence, explained
by medical rationale and be based upon a complete and accurate medical and factual background
of the claimant.16 Appellant submitted an sufficient medical evidence to establish the critical
element of causal relationship. He did not meet his burden of proof to establish that he sustained
an injury on September 18, 2006.17
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.18 Section 10.608(a) of the Code of Federal Regulations provides that
a timely request for reconsideration may be granted if the Office determines that the employee
has presented evidence and/or argument that meets at least one of the standards described in
section 10.606(b)(2).19 This section provides that the application for reconsideration must be
submitted in writing and set forth arguments and contain evidence that either: (1) shows that the
Office erroneously applied or interpreted a specific point of law; (2) advances a relevant legal
argument not previously considered by the Office; or (3) constitutes relevant and pertinent new
evidence not previously considered by the Office.20 Section 10.608(b) provides that when a
request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.21
ANALYSIS -- ISSUE 2
The Board finds that the Office improperly denied appellant’s request for a merit review
pursuant to section 8128(a) of the Act. Appellant’s arguments did not show that the Office
erroneously interpreted a point of law or advanced a legal argument not previously considered by
the Office. While appellant’s attorney correctly noted that the Office’s January 17, 2006
development letter referred to a right wrist injury, the questions attached to the letter were
relevant to appellant’s claim. The Board therefore finds this error harmless and insufficient to
establish a basis for merit review.22 Consequently, appellant was 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)(2).23
16

Patricia J. Glenn, 53 ECAB 159 (2001).

17

John W. Montoya, 54 ECAB 306 (2003).

18

5 U.S.C. § 8128(a).

19

20 C.F.R. § 10.608(a).

20

Id. at § 10.608(b)(1) and (2).

21

Id. at § 10.608(b).

22

See generally, L.H., 59 ECAB ____ (Docket No. 07-1191, issued December 10, 2007).

23

20 C.F.R. § 10.606(b)(2).

5

Appellant also submitted evidence previously of record. The Board has long held that the
submission of evidence which repeats of duplicates evidence already in the record does not
constitute a basis for reopening a case.24 However, appellant also submitted reports dated
April 3 and December 7, 2007 in which Dr. Joseffer noted the history of injury and appellant’s
complaints of radiating left leg pain which progressively worsened such that he went to the
emergency room where an MRI scan demonstrated a herniated disc at L3-4. Dr. Joseffer noted
that appellant underwent medically necessary microdiscectomy on November 21, 2006 and
concluded that, as documented by the MRI scan, the L3-4 disc herniation occurred at work on
September 18, 2006 and caused the disabling condition that required surgical intervention. The
Board finds that, as Dr. Joseffer advised that the herniated disc was caused by the September 18,
2006 employment incident, these reports constitute new and relevant evidence not previously
considered by the Office. Appellant therefore met the requirements of section 10.606(b)(2).
As appellant submitted new and relevant evidence not previously considered by the
Office, the case will be remanded to the Office for a decision on the merits of whether he met his
burden of proof to establish that he sustained an employment-related back injury on
September 18, 2006.25

24

D.K., 59 ECAB ____ (Docket No. 07-1441, issued October 22, 2007).

25

Annette Louise, 54 ECAB 783 (2003).

6

CONCLUSION
The Board finds that the Office properly denied the claim by its February 20, 2007 merit
decision. However, it improperly denied appellant’s request for further merit review pursuant to
section 8128(a) of the Act.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 20, 2007 be affirmed. The decision dated January 24,
2008 is set aside and the case remanded to the Office for proceedings consistent with this
decision of the Board.
Issued: August 26, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7