United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
_________________________________________

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

Docket No. 12-1680
Issued: February 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 3, 2012 appellant filed a timely appeal of a February 16, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP), which denied his request for
reconsideration without conducting a merit review. As more than 180 days elapsed from the
most recent merit decision of October 26, 2010 to the filing of this appeal, the Board lacks
jurisdiction to review the merits of his claim pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously on appeal before the Board. In a decision dated June 23, 2008,
the Board found that appellant was not entitled to intermittent wage-loss compensation for the
period July 12 to October 29, 2004.2 The facts of the case, as set forth in the prior decision, are
incorporated by reference.
On June 8, 2010 OWCP terminated appellant’s compensation benefits. It found that
Dr. Steven Valentino, an osteopath, was the weight of the medical evidence, which established
that appellant no longer had residuals of his accepted aggravation of lumbosacral degenerative
disc disease. Appellant requested reconsideration on August 3, 2010. By decision dated
October 26, 2010, OWCP denied modification of the June 8, 2010 decision. Appellant requested
reconsideration on December 13, 2010 and submitted additional medical evidence.
In a decision dated March 11, 2011, OWCP denied appellant’s request for
reconsideration without a review of the merits on the grounds that it was insufficient to warrant
review of its prior decision. It found that, among the new evidence submitted, only the report of
Dr. Christopher Plasteras, a physiatrist, was new. However, this report lacked the rationale to
support continued residuals related to the injury.
Per a telephone memorandum dated November 9, 2011, appellant contacted OWCP to
inquire into the status of a letter he sent on or about October 18, 2011. OWCP advised him that
no letter was received. It noted that appellant was provided with the fax number to submit a
copy of his correspondence.
In a letter dated December 16, 2011, appellant requested reconsideration and submitted
additional evidence.
OWCP received an October 18, 2011 report from Dr. Natacha Falcon, a Board-certified
physiatrist, who noted that he had reviewed Dr. Valentino’s second opinion report, which
indicated that appellant recovered from his work-related injury, returned to baseline and reached
maximum medical improvement. Dr. Falcon opined that she disagreed with Dr. Valentino’s
opinion as appellant continued to suffer from back pain following his injury. She indicated that
appellant continued to have back pain following an injury in 1985 and continued to receive
ongoing medical treatments to include medication management and epidural steroid injections.
Dr. Falcon advised that he was capable of working seven hours a day although he continued with
intermittent episodes of pain which was managed with medication, epidural injections and
physical therapy exercises. OWCP also received treatment notes from Dr. Plasteras for
therapeutic injections dated August 24, 2010.
In a February 16, 2012 decision, OWCP denied appellant’s request for reconsideration
finding that it was not timely filed and failed to present clear evidence of error.

2

Docket No. 07-1963 (issued June 23, 2008).

2

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
OWCP’s imposition of a one-year time limitation within which to file an application for
review as part of the requirements for obtaining a merit review does not constitute an abuse of
discretionary authority granted OWCP under section 8128(a).4 This section does not mandate
that OWCP review a final decision simply upon request by a claimant.
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a). Thus, section 10.607(a) of the implementing regulations
provide that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought.5
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP.7 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
3

5 U.S.C. § 8128(a).

4

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

7

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

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probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.8
ANALYSIS
In its February 16, 2012 decision, OWCP properly determined that appellant failed to file
a timely application for review. It rendered its last merit decision on October 26, 2010.
Appellant’s December 16, 2011 letter requesting reconsideration was submitted more than one
year after the October 26, 2010 merit decision and was, therefore, untimely.
In accordance with internal guidelines and with Board precedent, OWCP properly
proceeded to perform a limited review to determine whether appellant’s application for review
showed clear evidence of error, which would warrant reopening his case for merit review under
section 8128(a) of FECA, notwithstanding the untimeliness of his application. It reviewed the
evidence submitted by appellant in support of his application for review, but found that it did not
clearly show that OWCP’s prior decision was in error.
The Board finds that the evidence submitted by appellant in support of his application for
review does not raise a substantial question as to the correctness of OWCP’s decision and is
insufficient to demonstrate clear evidence of error. The critical issue in this case is whether
OWCP, on October 26, 2010, properly found that the evidence of record was insufficient to
warrant modification of the June 8, 2010 decision terminating his compensation and medical
benefits. The issue underlying appellant’s claim was whether appellant continued to have
residuals of his work-related condition and is primarily medical in nature.
On reconsideration, appellant submitted new medical evidence. The new medical
evidence included a report dated October 18, 2011 from Dr. Falcon. However, this report is
insufficient to establish clear evidence of error. Dr. Falcon opined that she disagreed with the
second opinion report of Dr. Valentino as appellant continued to suffer from back pain following
his work injury. However, the Board notes that clear evidence of error is intended to represent a
difficult standard. Evidence such as a detailed, well-rationalized report which, if submitted prior
to OWCP’s merit decision might require additional development of the claim, is insufficient to
establish clear evidence of error.9 Thus, this report is insufficient to raise a substantial question
as to the correctness of OWCP’s decision.
Regarding the August 24, 2010 reports of Dr. Plasteras, these reports were previously of
record and do not provide an opinion on causal relationship and do not provide positive, precise
or explicit evidence that manifests on its face that OWCP committed an error.

8

Id.

9

See E.R., Docket No. 09-599 (issued June 3, 2009).

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Appellant did not submit any new medical evidence or legal arguments sufficient to raise
a substantial question as to the correctness of OWCP’s decision. Consequently, OWCP properly
denied his reconsideration request as it does not establish clear evidence of error.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 19, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
C.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, METROPOLITAN
DETENTION CENTER, Brooklyn, NY,
Employer
__________________________________________

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

Docket No. 21-1265
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On August 19, 2021 appellant, through counsel, filed a timely appeal from a July 2, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than eight
percent permanent impairment of his left small finger for which he previously received a schedule
award.
FACTUAL HISTORY
On March 7, 2017 appellant, then a 47-year-old material handler supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on February 26, 2017 he injured the left side of
his body and broke his left small finger when attempting to move a loaded laundry cart which
tipped over causing him to fall while in the performance of duty. He stopped work on February 26,
2017 and returned to work on March 7, 2017. On October 15, 2018 OWCP accepted the claim for
nondisplaced closed fracture of the distal phalanx of the left little finger and mallet finger of the
left little finger.
On July 13, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In support of his claim, appellant provided an August 3, 2017 report from Dr. John C.
L’Insalata, a Board-certified orthopedic surgeon. Dr. L’Insalata described his history of injury on
February 26, 2017 and diagnosed fracture of the distal phalanx of the left small finger with a bony
mallet component. On physical examination he found prominence over the dorsal aspect of the
distal interphalangeal (DIP) joint of the left small finger, lacking about two degrees of full
extension of the DIP joint, and 75 degrees of flexion with full strength, and intact sensory and
motor examination.
Dr. L’Insalata referred to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides)3 and utilized the diagnosis-based
impairment (DBI) rating method to find that, under Table 15-2 (Digit Regional Grid), page 392,
the class of diagnosis (CDX) for mallet injury including avulsion fracture was a class 1 impairment,
grade C, with a default value of six percent for the digit. He assigned a grade modifier for
functional history (GMFH) of 2 based on pain symptoms with daily activities per Table 15-7, page
406. Dr. L’Insalata assigned a grade modifier for physical examination (GMPE) of 1 due to mild
decreased range of motion (ROM) of the DIP joint, pursuant to Table 15-8, page 408. He assigned
a grade modifier for clinical studies (GMCS) of 2 for associated intra-articular fracture of the distal
phalanx, which healed with prominence and gapping at the articular surface pursuant to Table 159, page 410. Dr. L’Insalata utilized the net adjustment formula (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX) = (2-1) + (1-1) + (2-1) = +2, which resulted in a grade E or eight percent permanent
impairment of the left small finger, which he converted to one percent permanent impairment of
the left hand and one percent impairment of the left upper extremity, pursuant to Table 15-12, page
421.
On July 12, 2019 Dr. Nathan Hammel, a Board-certified orthopedic surgeon, serving as a
district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and the medical
3

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

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record, including Dr. L’Insalata’s August 3, 2017 findings. He concurred with Dr. L’Insalata’s
findings. Dr. Hammel indicated that the ROM method result could not be applied due to the lack
of triplicate measurements provided by Dr. L’Insalata. He found that the date of MMI was
August 3, 2017, the evaluation date by Dr. L’Insalata.
On October 28, 2020 OWCP requested that the DMA clarify whether the impairment rating
should be for the digit itself or extend into the adjoining area of the member, the hand or upper
extremity. In a November 17, 2020 report, the DMA found that appellant was entitled to eight
percent permanent impairment of his left small finger. He noted that consistent with OWCP
procedures the general loss of less than one digit should be computed in terms of impairments to
the digit itself and that the loss of two or more digits should be computed in terms of impairment
to the whole hand. 4 The DMA found as only one finger was involved the impairment was best
expressed as eight percent impairment of the left small finger.
By decision dated December 11, 2020, OWCP granted appellant a schedule award for eight
percent permanent impairment of his left small finger. The award ran for 1.2 weeks during the
period August 3 to 11, 2017.
On January 4, 2021 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which took place on April 21, 2021.
By decision dated July 2, 2021, the hearing representative affirmed OWCP’s December 11,
2020 decision. She found that the weight of the medical evidence established that appellant had
no greater than eight percent permanent impairment of his left finger for which he previously
received a schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA 5 and its implementing regulations 6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 7 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved the use
4

Federal (FECA) Procedure Manual, Part 2--Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5.e (March 2017); B.H., Docket No. 16-0252 (issued October 7, 2016); Charles B. Carey, 49 ECAB 528 (1998).
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. See also B.B., Docket No. 20-1187 (issued November 18, 2021); Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Chapter 2.808.5a. (March 2017).

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by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 9
In addressing upper extremity impairments, the sixth edition requires that the evaluator
identify the impairment CDX, which is then adjusted by a GMFH, GMPE, and GMCS. 10 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable. 12 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.13 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable. 14
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.15 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluatio n, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing th e higher
rating should be used.” (Emphasis in the original.)16

9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

A.M.A., Guides 383-492.

11

Id. at 411.

12

Id. at 461.

13

Id. at 473.

14

Id. at 474.

15

FECA Bulletin No. 17-06 (May 8, 2017).

16

A.M.A., Guides 477.

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The Bulletin further advises: “If the rating physician provided an assessment using the
ROM method and the [A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the
DMA should independently calculate impairment using both the ROM and DBI methods and
identify the higher rating for the CE [clams examiner].”17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.18
ANALYSIS
The Board finds that this case is not in posture for decision.
In his August 3, 2017 report, Dr. L’Insalata provided one set of passive ROM
measurements for the left small finger. OWCP referred Dr. L’Insalata’s report to Dr. Hammel, its
DMA, who found that appellant had eight percent permanent impairment of the left small finger
under the DBI methodology. Dr. Hammel advised that Dr. L’Insalata’s report did not contain three
complete ROM measurements for the left small finger.
Pursuant to FECA Bulletin No. 17-06, if the ROM method of rating permanent impairment
is allowed, after review of the DBI rating, and the ROM findings are incomplete, the DMA should
advise as to the medical evidence necessary to complete the ROM method of rating if the medical
evidence of record is insufficient to rate appellant’s impairment using ROM. 19
Herein, OWCP did not follow the procedures outlined in FECA Bulletin No. 17-06 after
the DMA advised that the measurements for the left finger were incomplete and there was no
documentation to rate appellant’s permanent impairment utilizing the ROM methodology. 20
On remand OWCP shall obtain the necessary evidence as required under FECA Bulletin
No. 17-06 from Dr. L’Insalata.21 After it obtains the evidence necessary to complete the rating as
described above, the case shall be referred to a DMA to independently calculate impairment to the
left small finger using both ROM and DBI methods and identify the higher rating. 22 If
Dr. L’Insalata does not fully comply with the A.M.A., Guides, OWCP shall refer appellant to a
17

FECA Bulletin No. 17-06 (issued May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G.,
Docket No. 18-0329 (issued July 26, 2018).
18

See supra note 8 at Chapter 2.808.6f. (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

19

J.L., Docket No. 19-1684 (issued November 20, 2020); R.L., Docket No. 19-1793 (issued August 7, 2020); E.P.,
Docket No. 19-1708 (issued April 15, 2020).
20

C.H., Docket No. 20-0529 (issued June 16, 2021); J.L., R.L., id.; C.T., Docket No. 18-1716 (issued
May 16, 2019).
21

J.L., id.; J.S., Docket No. 19-0483 (issued October 10, 2019).

22

See J.L., id.; J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued
September 11, 2018).

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specialist in the appropriate field of medicine for a second opinion evaluation. Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 11-1829
Issued: March 13, 2012

Case Submitted on the Record

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

JURISDICTION
On August 2, 2011 appellant filed a timely appeal from a June 16, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly denied authorization of an orthopedic mattress
pursuant to 5 U.S.C. § 8103.
FACTUAL HISTORY
The case was before the Board on a prior appeal. As the Board noted, OWCP accepted
that appellant was in a motor vehicle accident on December 3, 2005 while in the performance of
duty. The claim was accepted for neck, lumbar, left shoulder and upper arm sprains. On
1

5 U.S.C. § 8101 et seq.

December 16, 2009 OWCP also accepted left lateral epicondylitis and left wrist sprain. In its
prior decision, the Board found that an August 22, 2008 wage-earning capacity was erroneous
and should be modified.2 The history of the case reported in the Board’s prior decision is
incorporated herein by reference.
In a report dated January 19, 2011, an attending orthopedic surgeon, Dr. Vivek
Kushwaha, diagnosed lumbar discogenic pain. He indicated that he had not seen appellant since
almost two years earlier, and stated that she had a recurrence of back pain. Dr. Kushwaha
indicated that he was giving her a prescription for an orthopedic mattress to see if that helped
with the back pain. In a report dated March 28, 2011, he stated that appellant was under his care
for injuries sustained at work on December 3, 2005. Dr. Kushwaha stated that she had persistent
pain and conservative measures had brought little relief, and he had prescribed an orthopedic
mattress as well as a sacrum lumbar support. He stated that, due to appellant’s medical condition
and limitations, “she requires the use of an orthopedic mattress and lumbar support in her home.”
Dr. Kushwaha concluded that he was recommending the mattress and lumbar support in helping
to improve her symptoms.
OWCP referred the medical evidence to an OWCP medical adviser for an opinion
regarding the request for a mattress. In a report dated April 20, 2011, the medical adviser noted
that Dr. Kushwaha had recommended a mattress and lumbar support in his March 28, 2011
report. He opined that a mattress was not needed as a result of the employment injury. The
medical adviser indicated that appellant probably could benefit from a lumbar support, but a
mattress would not cure, reduce disability or provide additional benefit.
By decision dated May 5, 2011, OWCP denied authorization for a mattress. Appellant
requested reconsideration on May 25, 2011. She submitted a report dated May 26, 2011 from
Dr. Wayne Alani, who provided a history and results on examination. Dr. Alani did not discuss
an orthopedic mattress.
By decision dated June 16, 2011, OWCP reviewed the case on its merits and denied
modification.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.3 In interpreting section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in

2

Docket No. 09-2355 (issued July 7, 2010).

3

5 U.S.C. § 8103(a).

2

the shortest amount of time.4 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.5
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.6 In order to be entitled to payment for a
medical expense, a claimant must establish that the expenditure is for treatment of the effects of
an employment-related injury, and submit rationalized medical evidence that supports such a
connection and demonstrates that the treatment is necessary and reasonable.7
ANALYSIS
In the present case, the accepted back condition was a lumbosacral sprain. Dr. Kushwaha
noted that appellant had back pain and he recommended an orthopedic mattress to help her
symptoms. He failed to provide a rationalized medical opinion on the issues presented.
Dr. Kushwaha does not clearly explain whether he believed the back pain he was treating in
2011 was causally related to the 2005 motor vehicle accident, and if so, why he believed it was
causally related.8
In addition, Dr. Kushwaha did not fully explain his recommendation for an orthopedic
mattress. He did not describe the recommended mattress and explain why it was medically
necessary and reasonable to treat the employment injury. An OWCP medical adviser reviewed
the evidence and found that a mattress was not medically necessary and a lumbar support would
provide equal benefit. The medical adviser did not support authorization of an orthopedic
mattress for treatment of an employment-related condition.
As noted above, OWCP has discretion with respect to furnishing supplies under
5 U.S.C. § 8103. Given that the attending physician did not provide a rationalized medical
opinion on the issue, and OWCP’s medical adviser found that the mattress was not warranted for
treatment of appellant’s back condition, the Board finds OWCP did not abuse its discretion in
denying authorization for the orthopedic mattress.
On appeal, appellant states that no one is following her physician’s orders and she needs
the requested supplies. As noted above, OWCP has discretion with respect to expenses for
medical supplies and the evidence does not establish that OWCP abused its discretion.
4

Dale E. Jones, 48 ECAB 648, 649 (1997).

5

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
6

See Debra S. King, 44 ECAB 203, 209 (1992).

7

See id.; E.K., Docket No. 07-1113 (issued May 16, 2008).

8

Rationalized medical opinion evidence is medical evidence that is based on a complete factual and medical
background, of reasonable medical certainty and supported by medical rationale explaining the opinion. Jennifer
Atkerson, 55 ECAB 317, 319 (2004).

3

Appellant may submit new evidence or argument with a written request for reconsideration to
OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied authorization of an orthopedic mattress.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 16 and May 5, 2011 are affirmed.
Issued: March 13, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Trenton, NJ,
Employer
__________________________________________

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

Docket No. 20-0898
Issued: February 17, 2021

Case Submitted on the Record

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

JURISDICTION
On March 18, 2020 appellant, through counsel, filed a timely appeal from a December 6,
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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the December 6, 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 appellant has met her burden of proof to establish a right shoulder
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 25, 2016 appellant, then a 65-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging a right shoulder rotator cuff tear causally related
to factors of her federal employment. She stated that she “worked manual letters and pitched mail
above her shoulders, reached and lifted trays of mail, and reached forward at chest level 40 hours
a day 5 days a week.” Appellant noted that she first became aware of her condition and its relation
to her federal employment on September 23, 2016. She did not stop work.
Appellant submitted reports dated September 23, October 7, November 1 and 10, 2016,
and March 23 and May 19, 2017, from Dr. Munir Ahmed, a Board-certified orthopedic surgeon,
who noted a history of appellant repetitively sorting and pitching mail with her right arm. He
diagnosed impingement syndrome of the right shoulder, cervicalgia, incomplete rotator cuff tear
of rupture of the right shoulder, not specified as traumatic, and high grade partial tear of the
subscapularis tendon near the rotator cuff with mild arthritic changes in the acromioclavicular
joint, bursitis of the right shoulder, right carpal tunnel syndrome, incomplete rotator cuff tear or
rupture of the left shoulder and sprain of the right rotator cuff capsule.
By decision dated November 18, 2016, OWCP accepted the alleged employment factors.
However, it denied the claim finding that the medical evidence of record was insufficient to
establish that appellant’s diagnosed right shoulder conditions were causally related to the accepted
factors of her federal employment.
On December 1, 2016 appellant, through her former counsel, requested a telephonic
hearing before an OWCP hearing representative, which was held on June 14, 2017.
In a July 29, 2017 statement, appellant indicated that she pitched mail, which involved
carrying a half tray to her workstation for about seven hours a day. She also performed dispatch
work, which involved sweeping five cases filled with mail. Appellant would take a half tray and
proceed to sweep the cases. She would then place a half tray on a skid for mail dispatch. This
was done until all the cases were empty. Appellant then placed the trays on a skid and sent out for
dispatch. She also related that she had restrictions of no lifting more than five pounds and no
pitching mail over the shoulder. Appellant noted that she was permitted to sweep mail, if she was
not in pain, and that she normally swept the mail as they were short-staffed.
By decision dated August 21, 2017, OWCP’s hearing representative affirmed the
November 18, 2016 decision, finding that the evidence of record was insufficient to establish
4

Docket No. 18-0194 (issued September 14, 2018).

2

causal relationship between appellant’s diagnosed shoulder conditions and the accepted
employment factors.
Appellant, through her former counsel, appealed to the Board on November 6, 2017. By
decision dated September 14, 2018, the Board affirmed OWCP’s August 21, 2017 decision.5
On January 23, 2019 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In a December 27, 2018 office note, Dr. Ahmed indicated that appellant was being treated
for shoulder pain. He noted that pertinent medical conditions include trauma and that the
mechanism of injury included direct trauma and lifting at work. Dr. Ahmed provided examination
findings and diagnosed pain in right shoulder, incomplete rotator cuff tear or rupture of right
shoulder, not specified as traumatic, and cervicalgia.
In an addendum report dated January 5, 2019, Dr. Ahmed opined that appellant’s 20 years
of work in a job that required repetitive use of the shoulder was the direct and proximate cause of
her right rotator cuff tear, biceps tenodesis and impingement syndrome of the right shoulder. He
noted that appellant provided a history of being employed as a postal worker since 1993 and that
part of her job duties consisted of pitching mail above her shoulders, lifting trays of mail and
reached forward chest level. Dr. Ahmed explained that as people age and/or overuse their
shoulders, over time the rotator cuff degenerates, especially in people over 40 and those in
occupations that require frequent raising and lowering of the arm, such as appellant. He indicated
that tiny tears develop in the rotator cuff, which make it weaker and more prone to larger tears,
and that it was possible for large tears to occur without any notable trauma. Dr. Ahmed also
indicated that right shoulder surgery was medically necessary.
By decision dated April 23, 2019, OWCP denied modification of the September 14, 2018
decision.
On August 20, 2019 appellant, through counsel, again requested reconsideration.
Evidence received included progress reports dated December 6, 2018, and January 10,
March 14, and April 18, 2019 from Dr. Laura E. Ross, a Board-certified orthopedic surgeon, who
evaluated appellant for cervical spine, left shoulder and right shoulder conditions, which appellant
reported were injured on September 23, 2016. Dr. Ross diagnosed exacerbation of cervical
spondylosis and degenerative joint disease (DJD) of bilateral shoulders. She recommended
arthroscopic surgery for the right shoulder, which she opined was medically necessary and causally
related to the September 23, 2016 work-related incident. Dr. Ross also provided cortisone
injections to both shoulders.
In a September 9, 2019 narrative report, Dr. Ross reported that appellant presented to her
office on December 6, 2018 for further evaluation of her neck, bilateral arms and wrists, left leg
and back injuries she sustained as a result of her employment as a mail processing clerk. She
indicated that appellant’s diagnostic testing revealed degenerative disc disease of cervical spine,
mild disc osteophyte complexes of spine, high-grade partial tear of the right subscapularis tendon
and mild acromioclavicular joint arthrosis, arthritic changes at the acromioclavicular (AC) joint
5

Id.

3

and the glenohumeral joint, moderate right carpal tunnel syndrome, and spondylosis of the cervical
spine and AC joint arthrosis, bilaterally. Dr. Ross provided an impression of exacerbation of
cervical spine degenerative disc disease, high-grade partial tear of the subscapularis tendon of the
right shoulder, post-traumatic AC joint arthrosis with impingement syndrome of the bilateral
shoulders, and moderate right carpal tunnel syndrome, all of which she opined were causally
related to appellant’s work duties as a mail processing clerk over a course of 25 years. She
indicated that this was based on objective medical evidence, including number diagnostic studies,
her physical examination of appellant, and correlated with appellant’s employment history. With
regard to the shoulders, Dr. Ross opined that appellant sustained high-grade partial tear of the right
subscapularis tendon of the right shoulder and post-traumatic AC joint arthrosis and impingement
syndrome of the bilateral shoulders. She explained that osteoarthrosis of the AC joints were often
caused by repeated movements of the arm, lifting, and overhead activities. Dr. Ross indicated that
appellant performed a significant amount of those repetitive duties, including reaching above her
shoulders, lifting trays of mail and reaching forward at the chest level on a regular basis, and had
expressed symptoms of this injury on a consistent basis. She concluded that appellant developed
a post-traumatic exacerbation of bilateral AC joint arthrosis as a direct result of her employment
activities and that it was not attributable to the normal aging process. Dr. Ross further indicated
that appellant sustained a high-grade partial tear of the subscapularis tendon of the right shoulder.
She indicated that she suspected that the AC joint arthrosis had predisposed appellant to further
injury in the right shoulder. Dr. Ross explained that while tears of the subscapularis tendon were
commonly caused by wearing down of the tendon that occurs slowly over time, repetitive stress,
such as repetitive shoulder motions, can stress the rotator cuff muscles and tendons. She indicated
this was the case with appellant, who sustained a high-grade partial tear of the subscapularis tendon
of the right shoulder as a direct result of the repetitive stress required of her position. Dr. Ross
again indicated that arthroscopic surgery was needed.6
December 21, 2018 cervical, left shoulder and right shoulder computerized tomography
scan reports were also received

6

With regards to the cervical spine, Dr. Ross diagnosed appellant with exacerbation of degenerative disc disease.
She indicated that, although most people develop some form of disc degeneration as they age, many report no
symptoms, which include neck pain with radiating symptoms into one or both upper extremities. Dr. Ross indicated
that appellant denied any cervical spine or upper extremity pain prior to the date of the employment incident. She
explained that injuries may accelerate and cause the development of degenerative changes in addition to repetitive
stress. Dr. Ross opined that this was the case with appellant, who sustained the post-traumatic development of this
condition over time as a direct result of her employment. This has been objectively correlated through diagnostic
studies and appellant’s symptoms were consistent with this diagnosis. Dr. Ross opined that this caused a posttraumatic exacerbation of the degenerative disc disease of the cervical spine, and was not attributed to the normal
aging process. She indicated that appellant required further conservative and interventional pain management
treatment for her cervical spine. Dr. Ross also opined that appellant’s right hand carpal tunnel syndrome was directly
attributable to the repetitive hand and wrist motions required during the course of appellant’s employment. She
explained how carpal tunnel syndrome occurs, noting that symptoms of pain, tingling, numbness and weakness in the
hand occurs when the synovial tissue swells, takes up space in the carpel tunnel and places abnormal pressure on the
nerve. Dr. Ross also indicated that most cases of carpal tunnel syndrome are caused by a combination of factors,
including repetitive hand use and repetitive activities involving flexion or extension of the hand and wrist for a
prolonged period of time. She indicated that appellant experienced those symptoms in her right wrist and opined that
it was directly related to the repetitive hand and wrist motions required during the course of her employment. Dr. Ross
indicated that appellant will likely develop carpal tunnel in her left wrist as a direct result of her duties.

4

By decision dated December 6, 2019, OWCP denied modification of its April 23, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,8 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.9 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.10
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.11
Causal relationship is a medical issue, and the evidence required to establish causal
relationship is rationalized medical opinion evidence.12 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and specific employment factors identified by the
employee.13
ANALYSIS
The Board finds that this case is not in posture for decision.

7

Supra note 2.

8

J.W., Docket No. 18-0678 (issued March 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
9

J.S., Docket No. 18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
10

L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No. 18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).
11

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

12

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
13

R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J.,
59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

Preliminarily, the Board notes that findings made in prior Board decisions are res judicata
absent any further review by OWCP under section 8128 of FECA.14 It is therefore unnecessary
for the Board to consider the evidence appellant submitted prior to the issuance of OWCP’s
August 21, 2017 decision because the Board considered that evidence in its September 14, 2018
decision.15
On reconsideration, appellant submitted additional reports from Dr. Ahmed and Dr. Ross.
Dr. Ahmed indicated that it was uncontroverted that appellant performed her mail processing job
for over 20 years, which required her to reach and lift trays, put mail above her shoulders and reach
for it at chest level in repetitive fashion. Appellant also denied any prior neck or right shoulder
conditions. Dr. Ahmed related that appellant’s right shoulder conditions were caused by her
repetitive employment duties. In his January 5, 2019 report, he attributed appellant’s repetitive
use of the shoulder to be the direct and proximate cause of her right rotator cuff tear, biceps
tenodesis and impingement syndrome of the right shoulder. Dr. Ahmed explained that as
individuals age and/or overuse their shoulders, the rotator cuff degenerates and tiny tears may
develop in the rotator cuff, which make it weaker and more prone to larger tears, which were
possible to occur without any notable trauma.
In her September 9, 2019 report, Dr. Ross described appellant’s work duties as a mail
processing clerk and opined that the significant amount of repetitive work appellant was required
to perform was directly related to the high-grade partial tear of the subscapularis tendon of the
right shoulder, and post-traumatic AC joint arthrosis with impingement syndrome of the bilateral
shoulders.16 She explained, in relevant part, that osteoarthrosis of the AC joints was often caused
by repeated movements of the arm, lifting, and overhead activities. Dr. Ross opined that appellant
developed post-traumatic exacerbation of bilateral AC joint arthrosis which was not attributable
to the normal aging process. She explained that repetitive stress of repetitive shoulder motions
can cause tears of the subscapularis tendon.
The Board notes that both Dr. Ahmed and Dr. Ross offered an affirmative opinion
regarding causal relationship and provided a physiological explanation as to how the accepted
employment factors could cause or contribute to appellant’s right shoulder conditions. While the
opinions of Dr. Ahmed and Dr. Ross are insufficiently rationalized to meet appellant’s burden of
proof, the Board finds that they are sufficient to require further development of the record as to
whether appellant’s right shoulder conditions are causally related to the accepted factors of her
federal employment.17

14
J.T., Docket No. 18-1757 (issued April 19, 2019); S.S., Docket No. 17-1106 (issued June 5, 2018); H.G., Docket
No. 16-1191 (issued November 25, 2016).
15

Id., supra note 4. This included a review of Dr. Ahmed’s reports dated September 23, October 7, and
November 10, 2016 and March 23, 2017.
16

While Dr. Ross also addressed other diagnosed conditions, such as cervical spine degenerative disc disease and
right CTS, appellant’s counsel indicated that those conditions were being adjudicated under OWCP File No.
xxxxxx177.
17

V.P., Docket No. 20-0415 (issued July 30, 2020); G.M., Docket No. 19-0657 (issued September 13, 2019); see
also John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

It is well established that proceedings under FECA are not adversarial in nature, and that
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. OWCP has an obligation to see that justice is
done.18 The nonadversarial policy of proceedings under FECA is reflected in OWCP’s regulations
at section 10.121.19
The case will therefore be remanded to OWCP for further development of the medical
evidence and a referral to a specialist in the appropriate field of medicine for an examination and
opinion on the issue of whether appellant sustained right shoulder conditions causally related to
the accepted factors of her federal employment. If the physician opines that the diagnosed
conditions are not causally related to the accepted employment factors, he or she must provide a
rationalized explanation as to why their opinion differs from that articulated by Drs. Ahmed and
Ross. After this and other such further development as OWCP deems necessary, it shall issue a
de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

18

V.P., id., S.C., Docket No. 19-0920 (issued September 25, 2019).

19

20 C.F.R. § 10.121.

7

ORDER
IT IS HEREBY ORDERED THAT the December 6, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 17, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, BELLEVILLE
BRANCH, Jersey City, NJ, Employer
__________________________________________

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

Docket No. 15-0492
Issued: November 16, 2015

Case Submitted on the Record

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

JURISDICTION
On January 5, 2015 appellant, through counsel, filed a timely appeal from a September 5,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits on
December 31, 2013 pursuant to 5 U.S.C. § 8106(c).
On appeal appellant, though counsel, contends that she was denied due process in that she
did not receive proper notice prior to the termination of her benefits. In the alternative, counsel
contends that there was a conflict in medical evidence and that therefore she should have been
sent for an impartial medical examination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 6, 2012 appellant, then a 56-year-old sales and service associate, filed a
traumatic injury claim (Form CA-1) alleging that on March 2, 2012 she injured her right arm and
sustained shoulder pain while moving a parcel on a table. OWCP accepted her claim for right
shoulder impingement syndrome.
On December 13, 2012 Dr. Robert Kayal, a Board-certified orthopedic surgeon,
performed a right shoulder arthroscopy. In progress reports dated from February 27 through
May 22, 2013, he excused appellant from all work until further notice due to medical reasons.
On April 22, 2013 OWCP referred appellant to Dr. Jeffrey F. Lakin, a Board-certified
orthopedic surgeon, for a second opinion as to whether she continued to have residuals of the
accepted injury and remained disabled. In a May 6, 2013 report, Dr. Lakin listed the accepted
diagnosis of impingement syndrome for which she had undergone surgical intervention on
December 13, 2012. He noted that appellant continued to have objective signs and symptoms of
the accepted condition of shoulder impingement, noting decreased strength and decreased motion
of the right shoulder, which were related to the surgery of December 13, 2012. Dr. Lakin noted
that she was unable to perform her date-of-injury job as she was unable to reach overhead with
the right shoulder and had decreased strength of the right shoulder. He further opined that
pushing/pulling/lifting/squatting/kneeling/climbing should be limited to one hour and 10 pounds.
However, Dr. Lakin opined that appellant was capable of returning to work full time on light
duty with limitations as noted in an OWCP-5 form.
In a June 24, 2013 report, Dr. Kayal noted that June 5, 2013 magnetic resonance imaging
(MRI) scans showed a focal interstitial tear within the distal posterior supraspinatus tendon; tear
of the posterior inferior labrum; evidence of a probable prior superior labral tear from anterior to
posterior (SLAP) with no evidence of recurrent superior labral tear; mild osteoarthritis at the
glenohumeral joint; small intraarticular loose body within the axillary recess; and mild-tomoderate subacromial/subdeltoid bursitis. He diagnosed neck sprain on right side, sprained right
superior glenoid labrum lesion, shoulder tendinitis, and adhesive capsulitis of the shoulder.
On July 1, 2013 the employing establishment offered a modified assignment,
services/distribution associate -- modified.
The position was limited to intermittent
lifting/pushing/pulling up to 10 pounds intermittently for one hour a day, and standing and
intermittent reaching (not above shoulder) for eight hours a day. On July 17, 2013 appellant
declined the position.
By letter dated July 12, 2013, OWCP informed appellant that the weight of the evidence
rested with Dr. Lakin because Dr. Kayal had not provided medical rationale as to why she
remained totally disabled.
In a July 25, 2013 note, Dr. Kayal indicated that appellant could return to light duty. He
did not recommend any lifting, pushing, pulling, or reaching.
On August 13, 2013 the employing establishment again offered appellant a modified
position as a sales, service/distribution associate. The position involved intermittent lifting up to

2

10 pounds for one hour, intermittent pushing/pulling up to 10 pounds for one hour, and eight
hours of standing and intermittent reaching (not above shoulder).
By letter dated August 14, 2013, OWCP advised appellant that it had reviewed the job
offer by the employing establishment and found it to be within the restrictions set by Dr. Lakin.
It noted that Dr. Kayal had not provided a rationalized statement as to why she could not lift,
push, pull, or reach nor did he indicate how many hours a day she could work. Appellant was
given 30 days to respond. OWCP informed her that if she failed to report to the offered position
or her reason for not reporting was not justified, her right to compensation and schedule award
benefits would be terminated. Appellant accepted the modified assignment with the employing
establishment on September 11, 2013.
In a September 16, 2013 report, Dr. Kayal noted that appellant had been injured at work
on March 2, 2012 when she suffered an injury to her right shoulder. He noted that her injury
required right shoulder arthroscopy which included a glenohumeral (GH) joint synovectomy,
labral stabilization of a SLAP lesion, chondroplasty of the GH joint, subacromial decompression
with bursectomy, debridement of a partial thickness bursal-sided rotator cuff tear, and rotator
cuff repair. Dr. Kayal noted that it had now been nine months since appellant’s right shoulder
arthroscopy and her range of motion remained poor. He noted severe limitations in her right
shoulder motion due to pain. Dr. Kayal noted that he would even consider appellant’s shoulder
to be “frozen” and consistent with the syndrome of adhesive capsulitis. He noted that physical
therapy was still imperative.
Appellant retired as of October 1, 2013.
By letter dated November 19, 2013, OWCP noted that appellant had returned to work as
a modified sales service/distribution associate on September 11, 2013, but elected to retire on
October 1, 2013. It determined that the weight of the medical evidence rested with Dr. Lakin
and that the evidence of record established that she could perform the suitable modified offer.
OWCP advised appellant that she had 30 days to accept the position or provide reasons for not
returning to her position.
In response, appellant submitted a November 6, 2013 progress note wherein Dr. Kayal
noted that he gave her an injection. Dr. Kayal noted that she should continue to work at
managing what has become a frozen shoulder. He continued to assess appellant with neck sprain
on the right side, sprained right superior glenoid labrum lesion, shoulder tendinitis, and adhesive
capsulitis of the shoulder.
By letter dated December 31, 2013, OWCP terminated appellant’s compensation for
wage-loss and schedule award benefits effective that date for abandonment of suitable work in
accordance with 5 U.S.C. § 8106(c)(2).
By letter dated January 7, 2014 appellant, through counsel, requested a hearing before an
OWCP hearing representative. At the hearing held on June 19, 2014, appellant’s counsel argued
that appellant was denied procedural due process in that she was entitled to another letter
providing her 15 days to report to work after being told that her reasons for not accepting the

3

position were invalid. He also suggested that the medical evidence was insufficient to show that
the job was suitable.
In a letter dated July 23, 2014, appellant stated that she had returned to work on
September 11, 2013, that one of the clerks told her that she should not have come back to work
as there was no light-duty work on window, that her supervisor showed her a way to lift heavy
boxes, that she was in pain every day of work, and that she told her supervisor that it was too
much for her and retired on September 30, 2013.
By decision dated September 5, 2014, an OWCP hearing representative affirmed the
December 31, 2013 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.2 Section 8106(c)(2) of FECA provides that a partially disabled
employee who refused or neglects to work after suitable work is offered to, procured by or
secured for the employee is not entitled to compensation.3 To justify termination of
compensation, OWCP must show that the work offered was suitable and must inform appellant
of the consequences of refusal to accept such employment.4
Section 10.517(a) of FECA’s implementing regulations provide 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.5 Pursuant
to section 10.516, the employee shall be provided the opportunity to make such a showing before
a determination is made with respect to termination of entitlement to compensation.6
Before compensation can be terminated, OWCP has the burden of demonstrating that the
employee can work, setting forth the specific restrictions, if any, on the employee’s ability to
work, establishing that a position has been offered within the employee’s work restrictions and
setting forth the specific job requirements of the position.7 In other words, to justify termination
of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, OWCP has the
burden of showing that the work offered to and refused by appellant was suitable.8

2

Linda D. Guerrero, 54 ECAB 556 (2003).

3

Supra note 1 at § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

4

Ronald M. Jones, 52 ECAB 190 (2000).

5

20 C.F.R. § 10.517(a); see also id.

6

Id. at § 10.516.

7

See Linda Hilton, 52 ECAB 476 (2001).

8

Id.

4

When OWCP considers a job to be suitable, it shall advise the employee of its finding
and afford her 30 days to either accept the job or present any reasons to counter OWCP’s finding
of suitability.9 If the employee presents evidence or reasons for refusing the offered position and
OWCP determines that the reasons are unacceptable, it will notify the employee of that
determination and further inform the employee that she has 15 days in which to accept the
offered work without penalty.10 After providing the 30-day and 15-day notices, OWCP will
terminate the employee’s entitlement to further compensation.11 However, the employee may
remain eligible for medical benefits.12
ANALYSIS
The Board finds that OWCP improperly terminated appellant’s compensation benefits.
As a penalty provision, 5 U.S.C. § 8106(c) should be narrowly construed and not lightly
invoked.13 The regulatory scheme for imposing the penalty of termination of benefits by OWCP
provides for a two-tiered notification process.14 The initial 30-day notification was issued on
August 14, 2013 when OWCP determined that the position of a modified sales
service/distribution association was suitable. Appellant did accept this job offer on September
11, 2013 and returned to work, but she elected to retire as of October 1, 2013.
OWCP then advised appellant on November 19, 2013 that she had 30 days to either
accept the position or present, in writing, any reasons to counter its finding of suitability.15 In
response, appellant submitted further medical evidence, specifically a progress note by Dr. Kayal
dated November 6, 2013. OWCP terminated her benefits on December 31, 2013 without issuing
a 15-day letter giving appellant the opportunity to accept the offered position without penalty.
Initially, the Board rejects counsel’s argument that the 15-day letter should have been
issued because appellant was retired and that OWCP stated in the December 31, 2013 decision
that retirement was not a valid reason for refusing to accept the job. Counsel argues that the
present case is similar to J.S.,16 wherein the claimant indicated his desire to retire, and the Board
found that OWCP had failed to provide appellant 15 days to return to work before terminating
compensation. Counsel’s argument is flawed as the date sequence presented in argument is
incorrect and therefore is distinguished from J.S. In J.S., the claimant explained, in response to
the 30-day letter, that he was retiring. Therefore, OWCP failed to issue a 15-day letter providing
9

20 C.F.R. § 10.516.

10

Id. See also Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992). The 15-day
notification need not explain why OWCP found the employee’s reasons for refusal unacceptable.
11

Stephen A. Basquale, 57 ECAB 396, 402 (2006); see also N.B., Docket No. 14-1778 (issued July 27, 2015).

12

Supra note 5 § 10.517(b).

13

Stephen A. Pasquale, 57 ECAB 396, 402 (2006).

14

20 C.F.R. §§ 10.516, 10.517(b); see S.G., Docket No. 08-1992 (issued September 22, 2009).

15

Id. at § 10.516.

16

Docket No. 06-1931 (issued April 11, 2007).

5

appellant the additional opportunity to accept the position. The Board found that she should
have been provided with the 15-day letter and that therefore OWCP improperly terminated
compensation. In the instant case, appellant retired before the 30-day letter was issued.
Specifically, in the instant case, she retired as of October 1, 2013 and after the retirement, OWCP
sent a November 19, 2013 letter advising her that she had 30 days to accept the offered position
or provide reasons for not returning to that position. Accordingly, the Board finds that the
requirement of a 15-day notice was not initiated by appellant’s retirement.
However, the Board finds that OWCP’s termination of benefits was still procedurally
flawed. Appellant submitted additional medical evidence in response to OWCP’s November 19,
2013 letter, specifically, the November 6, 2013 progress note by Dr. Kayal. OWCP
acknowledged receiving this evidence, but did not provide her a 15-day notification prior to
terminating her compensation.17 Pursuant to OWCP’s procedure manual, OWCP should have
provided appellant an additional 15-day notice after rejection of the new evidence giving her the
opportunity to accept the position prior to terminating her compensation.18 Accordingly, due to a
procedural error, OWCP did not properly terminate appellant’s compensation on the grounds that
she abandoned suitable employment under 5 U.S.C. § 8106(c)(2).
CONCLUSION
The Board finds that OWCP did not properly terminate appellant’s compensation benefits
on December 31, 2013 pursuant to 5 U.S.C. § 8106(c).

17

Supra note 7; see also Sergio Sepulveda, Docket No. 04-2111 (issued November 24, 2004).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Determining Whether Earnings are Representative of the Wage-Earning Capacity, Job Offer Refusal,
Chapter 2.814.5(e)(3) (June 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 5, 2014 is reversed.19
Issued: November 16, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

19

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

7


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

)
)
)
)
)
)
)
)

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

Docket No. 15-6
Issued: February 27, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 1, 2014 appellant filed a timely appeal from a May 13, 2014 merit decision
denying her claim for compensation and a June 27, 2014 nonmerit decision denying
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that she
sustained a left foot injury on December 10, 2013; and (2) whether OWCP properly refused to
reopen her case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 4, 2014 appellant, then a 52-year-old mail handler, filed an occupational
disease claim alleging that she sustained an injury to her left ankle as a result of her employment
1

5 U.S.C. § 8101 et seq.

duties which included lifting, pushing, pulling, throwing, and walking with equipment. She
stated that on December 10, 2013 she first became aware of her left foot condition and realized
that it was caused or aggravated by her employment. Appellant advised that her left ankle was
swollen, inflamed, and infected and it was hard to walk. She stopped work on November 26,
2013 and intermittently submitted CA-7 forms claiming periods of disability. No evidence was
submitted with the claim.
By letter dated April 1, 2014, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised as to the type of medical and factual
evidence required to support her claim and accorded 30 days to submit such evidence.
In response, appellant submitted a position description of mail handler and on April 10,
2014 she signed the questionnaires for completion but did not include any factual information
with the questionnaire.
In an April 1, 2014 report, Dr. Jondelle B. Jenkins, a podiatrist/foot surgeon, stated that
appellant had been seen since December 10, 2013 for a primary diagnoses of pes planus, stage 2
posterior tibial tendinitis which was aggravated by an on-the-job injury. She noted the treatment
modalities appellant underwent prior to her reconstructive surgical procedure to the left foot in
February 2014. Dr. Jenkins stated appellant’s postoperative condition had not improved to the
point where she was able to return to work and maximum medical improvement had not been
achieved. She stated that appellant’s condition was exacerbated by prolonged walking and
standing.
By decision dated May 13, 2014, OWCP denied appellant’s claim on the grounds that
there was no medical evidence containing a diagnosis causally related to the accepted work
event(s).
On June 17, 2014 OWCP received appellant’s June 12, 2014 request for reconsideration.
Appellant submitted a new Form CA-7, claim for compensation, dated May 8, 2014. No new
medical evidence was submitted with the reconsideration request.
By nonmerit decision dated June 27, 2014, OWCP denied reconsideration.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 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.2 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.3
2

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

3

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

2

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) 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 is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition, and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition, and the specific employment factors
identified by the claimant.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.6 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS -- ISSUE 1
Appellant alleged that her employment as a mail handler caused or aggravated her left
foot condition on December 10, 2013. OWCP accepted and the evidence establishes that she
filed a timely claim; that the employment factors occurred; that a medical condition had been
diagnosed; and that she was within the performance of duty. The issue is whether the medical
evidence establishes that the diagnosed medical condition of pes planus stage 2 posterior tibial
tendinitis was caused by the accepted work activities.
The Board finds that appellant has not established that the diagnosed left foot condition
was causally related to her work activities.

4

Solomon Polen, 51 ECAB 341 (2000).

5

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); Michael S. Mina, 57 ECAB
379 (2006).
6

J.J., Docket No. 09-27 (issued February 10, 2009); Sedi L. Graham, 57 ECAB 494 (2006).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

3

The determination of whether an employment injury is causally related to work factors is
generally established by medical evidence.8 The only medical evidence submitted was
Dr. Jenkins’ April 1, 2014 report. In that report, Dr. Jenkins diagnosed the medical condition of
pes planus stage 2 posterior tibial tendinitis, which she opined was aggravated by an on-the-job
injury. However, no description was provided as to frequency and duration of the accepted work
activities, or how they aggravated her foot condition. The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.9 While Dr. Jenkins indicated that appellant’s condition was exacerbated by
prolonged walking and standing and indicated that her primary diagnosis was “aggravated by an
on-the-job injury,” she failed to provide any medical rationale as to how walking and standing at
work was different from walking and standing outside of work and made no reference to a
specific on-the-job incident. A physician must provide a narrative description of the specific
employment duties and a reasoned opinion on whether the employment duties described caused
or contributed to appellant’s diagnosed medical condition.10 Due to these deficiencies, this
report is insufficient to meet appellant’s burden of proof.
To meet his or her burden of proof, an employee must submit a physician’s rationalized
medical opinion on the issue of whether the medical condition was caused by the employment.11
The issue of whether appellant’s foot condition was caused but any work activities is a medical
question which must be established by a physician who, on the basis of a complete and accurate
factual and medical history.12 Appellant did not submit sufficient medical evidence to establish
that her employment caused an injury.
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 or the
belief that her condition was caused, precipitated, or aggravated by her employment, is sufficient
to establish causal relationship.13 Causal relationships must be established by rationalized
medical opinion evidence. As noted, the medical evidence is insufficient to establish appellant’s
claim. Consequently, OWCP properly found that appellant did not meet her burden of proof in
establishing her claim.
On appeal, appellant asserted that she was standing in her work areas waiting for the
all-purpose containers when the bar broke loose and fell on her ankle and foot. In support of her

8

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

9

Supra note 7.

10

K.E., Docket No. 08-1461 (issued December 17, 2008); John W. Montoya, 54 ECAB 306 (2003).

11

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

12

Sandra D. Pruitt, 57 ECAB 126 (2005).

13

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

4

assertion she submitted new evidence. The Board, however, is precluded from reviewing
evidence which was not before OWCP at the time that it issued its final decision.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,15
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.16 To be entitled to a merit review of OWCP’s decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.17 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.18
ANALYSIS -- ISSUE 2
The underlying issue on reconsideration is whether appellant submitted sufficient medical
evidence to show that her foot condition is caused or aggravated by factors of employment.
Appellant’s June 12, 2014 request for reconsideration did not allege that OWCP erroneously
applied or interpreted a specific point of law. She also did not provide any relevant or pertinent
new evidence warranting the reopening of the case on the merits.
In support of her reconsideration request, appellant submitted a Form CA-7 requesting
additional dates of compensation. This form is not relevant to the underlying issue as to whether
her left foot condition is causally related to factors of her employment. The submission of
evidence which does not address the particular issue involved does not constitute a basis for
reopening a case. As such it did not require that OWCP reopen the claim for merit review.19

14

See 20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57
ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003); M.B., Docket No. 09-176 (issued
September 23, 2009). If appellant is alleging a specific traumatic event, she may file a claim for traumatic injury.
15

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
16

20 C.F.R. § 10.606(b)(2). Susan A. Filkins, 57 ECAB 630 (2006); see J.M., Docket No. 09-218 (issued
July 24, 2009).
17

Id. at § 10.607(a). Robert G. Burns, 57 ECAB 657 (2006); see S.J., Docket No. 08-2048 (issued July 9, 2009).

18

20 C.F.R. § 10.608(b). Tina M. Parrelli-Ball, 57 ECAB 598 (2006); see Y.S., Docket No. 08-440 (issued
March 16, 2009).
19

See D.K., 59 ECAB 141 (2007).

5

The Board finds that appellant did not submit arguments or evidence showing that
OWCP erroneously applied or interpreted a specific point of law; advance a relevant legal
argument not previously considered; or relevant and pertinent new evidence not previously
considered by OWCP. As appellant did not meet any of the regulatory requirements, OWCP
properly declined to reopen her claim for further merit review.20
CONCLUSION
The Board finds that appellant has not established that she sustained a medical condition
causally related to her federal employment, as alleged. The Board further finds that OWCP did
not abuse its discretion by declining to reopen appellant’s claim for merit review.
ORDER
IT IS HEREBY ORDERED THAT the June 27 and May 13, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 27, 2015
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

20

A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006) (when an application for reconsideration does not meet at least one of the three requirements enumerated
under section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the case for a
review on the merits).

6