United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DORIS MILLER VA MEDICAL CENTER,
Waco, TX, Employer
__________________________________________

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

Docket No. 21-1296
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 28, 2021 appellant filed a timely appeal from an April 5, 2021 merit decision
and an August 24, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 24, 2021 decision, appellant submitted additional evidence to OWCP.
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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a traumatic
injury in the performance of duty on January 29, 2021, as alleged; and (2) whether OWCP properly
denied appellant’s request for an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On February 24, 2021 appellant, then a 61-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that, on January 29, 2021, she sustained injuries to her neck,
back, hips, right arm, right elbow, right leg, and right knee while in the performance of duty. She
reported that, as she turned right on the sidewalk toward her car, she stepped into a hole in the
ground, causing her to lose her balance, twist her body, and fall backwards. Appellant also claimed
that she experienced blurred vision, difficulty balancing, and intermittent headaches. On the
reverse side of the claim form, her supervisor, indicated that appellant was not injured in the
performance of duty because she was leaving work for the day at the time of the fall. She stopped
work on February 1, 2021.
In a March 2, 2021 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her as to the type of factual and medical evidence required and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to respond. No further
evidence was received.
By decision dated April 5, 2021, OWCP denied appellant’s traumatic injury claim, finding
that the submitted evidence did not establish that the January 29, 2021 incident occurred, as
alleged. It noted that appellant had not completed and returned its factual questionnaire. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
OWCP subsequently received a February 5, 2021 medical report from Dr. Gilbert
Mayorga, a Board-certified family medicine specialist, relating that appellant was “performing her
usual job duties” on or about January 29, 2021 and, as she was exiting the building, lost her footing,
slipped, and fell backwards, twisting her right knee. He noted appellant’s symptoms of pain,
discomfort, and loss of range of motion in her neck, thoracic spine, and lumbosacral spine, pain
and discomfort of the right upper extremity, intermittent numbness and tingling in the upper and
lower extremities, and pain, discomfort, swelling, and abrasions to her right knee. He examined
appellant and diagnosed sprains of the cervical spine, thoracic spine, lumbosacral spine, right
elbow, right shoulder, right wrist, and right knee, as well as lumbar radiculitis, cervical radiculitis,
and abrasions and contusions of the right arm and right knee. Dr. Mayorga advised that appellant
should remain off work. 3

3

Appellant underwent multiple x-ray scans on February 12, 2021. The cervical spine x-ray revealed C2-3 facet
fusion and multilevel spondylosis with C4-5 anterior osteophyte formation. The lumbar spine x-ray revealed no acute
findings. The right knee x-ray revealed a bipartite patella with advanced degenerative change versus old healed
fracture with advanced degenerative change in the patellofemoral articulation. The right shoulder x -ray revealed
acromioclavicular arthropathy and probably calcific peritendinitis, but no evidence of fracture. The right elbow and
right wrist x-rays were negative for fracture or dislocation.

2

On July 2, 2021 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
By decision dated August 24, 2021, OWCP denied appellant’s request for an oral hearing
as untimely filed, finding that her request was not made within 30 days of the April 5, 2021 OWCP
decision as it was postmarked on July 2, 2021. It further exercised discretion and determined that
the issue in this case could equally well be addressed by a request for reconsideration before
OWCP along with the submission of new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 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 timely filed within the applicable
time limitation period of FECA, 5 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. 6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 8 Fact
of injury consists of two components that must be considered in conjunction with one another.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time and place, and in the manner alleged. 9 Second, the employee
must submit sufficient evidence to establish that the employment inc ident caused a personal
injury.10
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.11 The employee has not met his or her burden of proof to establish th e occurrence of an
4

Supra note 1.

5

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

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injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established. 12 An employee’s
statements 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 or persuasive evidence.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on January 29, 2021, as alleged.
Appellant has not established the factual component of her claim as she has insufficiently
explained how and where the claimed injury occurred. 14 In her February 24, 2021 Form CA-1,
she indicated that on January 29, 2021 she sustained multiple injuries when she turned right on the
sidewalk toward her car, stepped into a hole in the ground, lost her balance, twisted, and fell
backwards. On the reverse side of the claim form her supervisor indicated that appellant was
leaving work for the day at the time of her injury. Appellant did not submit a detailed account of
the alleged injury or any additional corroborating factual evidence describing how and where she
sustained an injury on January 29, 2021. The Board has held that such a vague recitation of facts
does not support a claimant’s allegation that a specific event occurred to cause a work-related
injury.15
OWCP, in its March 2, 2021 development letter, informed appellant of the type of factual
and medical evidence needed to establish her traumatic injury claim. It requested that she complete
an attached questionnaire and provide a detailed factual description of the alleged employment
incident. Appellant, however, did not respond.16
Appellant has not provided a sufficient description of the alleged employment incident and
the mechanism by which she sustained an injury; therefore, the Board finds that she has not met
her burden of proof.17 As appellant has not met her burden of proof to establish that an incident
occurred in the performance of duty, as alleged, it is unnecessary to address the medical evidence
of record regarding causal relationship.18

12

Betty J. Smith, 54 ECAB 174 (2002); L.D., Docket No. 16-0199 (issued March 8, 2016).

13

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

14

See E.C., Docket No. 19-0943 (issued September 23, 2019).

15

M.C., supra note 13; M.B., Docket No. 11-1785 (issued February 15, 2012).

16

See M.F., supra note 11.

17

H.D., Docket No. 15-1698 (issued May 4, 2016).

18

J.C., Docket No. 19-0542 (issued August 14, 2019); see M.P., Docket No. 15-0952 (issued July 23, 2015);
Alvin V. Gadd, 57 ECAB 172 (2005).

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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
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”19
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary. 20 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration. 21
Although there is no right to a review of the written record or an oral hearing if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124(b).
OWCP’s regulations provide that the request for an oral hearing must be made within 30
days of the date of the decision for which review is sought. 22 Because appellant’s hearing request
was postmarked on July 2, 2021, it post-dated OWCP’s April 5, 2021 decision by more than 30
days and, therefore, is untimely. Appellant was, therefore, not entitled to an oral hearing as a
matter of right. 23
OWCP, however, has the discretionary authority to grant the request and it must exercise
such discretion. 24 The Board finds that, in the August 24, 2021 decision, OWCP properly
exercised its discretion by determining that the issue in the case could be equally well addressed
through a request for reconsideration before OWCP, along with the submission of additional
evidence.
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
19

5 U.S.C. § 8124(b)(1).

20

20 C.F.R. §§ 10.616, 10.617.

21

Id. at § 10.616(a).

22

Supra note 19; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record,
Chapter 2.1601.4(a) (September 2020).
23

See P.C., Docket No. 19-1003 (issued December 4, 2019).

24

Id.

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exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.25 In this case, the evidence of record does not indicate that OWCP abused
its discretion by denying appellant’s request for an oral hearing. Accordingly, the Board finds that
OWCP properly denied her request for an oral hearing pursuant to 5 U.S.C. § 8124(b) as untimely
filed.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on January 29, 2021, as alleged. The Board further finds that
OWCP properly denied her request for an oral hearing as untimely filed pursuant to 5 U.S.C.
§ 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the April 5 and August 24, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
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

25

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.A., Appellant
and
U.S. POSTAL SERVICE, PACIFIC BEACH
STATION, San Diego, CA, Employer
__________________________________________

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

Docket No. 15-1449
Issued: October 6, 2015

Case Submitted on the Record

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

JURISDICTION
On June 24, 2015 appellant filed a timely appeal from a May 19, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3,2 the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on April 7, 2015.
On appeal appellant generally asserts that the medical evidence establishes his claim.

1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant submitted evidence with his appeal to the Board. The Board cannot consider this
evidence as its jurisdiction is limited to the evidence of record that was before OWCP at the time it issued its final
decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).

FACTUAL HISTORY
On April 7, 2015 appellant, then a 62-year-old distribution clerk, filed an occupational
disease claim alleging that he felt low back pain while throwing a parcel that day. He stopped
work on April 7, 2015.
By letter dated April 10, 2015, OWCP informed him of the evidence needed to support
his claim. It specifically asked that he clarify the date of injury and whether he was claiming a
traumatic injury or an occupational disease. In a response dated April 16, 2015, appellant
clarified that he was, in fact, filing a traumatic injury claim. He related that, in support of a
traumatic injury claim, around 6:00 a.m. on Tuesday, April 7, 2015 he was picking up, scanning,
and throwing boxes to the appropriate hamper for delivery. Appellant stated that he picked up a
box that weighed approximately 35 to 40 pounds to throw 10 feet into the hamper and, as he
threw it, he felt a snap in his lower back, followed by pain. He indicated that he immediately
told his supervisor who took him to the station manager who advised him to see his physician
and bring in a medical report. On May 6, 2015 appellant reiterated that he intended to file a
traumatic injury claim.
Medical evidence of record submitted includes reports dated April 8, 2015 in which
Dr. Lawrence J. Schlitt, a Board-certified family physician, noted appellant’s complaint of low
back pain. A lumbosacral spine x-ray that day demonstrated diffuse lumbar spondylosis and a
transitional L5 body. On a duty status report dated that day, Dr. Schlitt noted physical findings
of tenderness at L4-5 and advised that appellant could not work. On April 9, 2015 he advised
that appellant could return to work on April 15, 2015 with no restrictions.
In an April 14, 2015 report, Dr. Patrick Javidan, a chiropractor, advised that appellant
was under his care for lower back pain. He indicated that appellant’s symptoms had not
improved enough for him to return to work, finding that he could return to work on
April 22, 2015.
In an April 22, 2015 treatment note, Dr. Schlitt noted appellant’s report that after four
treatments with Dr. Javidan he had improved somewhat, but had worsening pain when sitting or
standing for extended periods. He described physical examination findings of tender paralumbar
and parathoracic muscle trigger points and diminished back range of motion with no
neurological deficits. Dr. Schlitt diagnosed low back pain and lumbar spondylosis and referred
appellant for a physiatry consultation and physical therapy evaluation. He also completed a
Family and Medical Leave Act health care provider certification that day. Dr. Schlitt reported
that appellant’s condition began on April 7, 2015 and would probably continue for 30 days. He
reiterated his findings and conclusions and advised that appellant could not return to work until
cleared.
By decision dated May 19, 2015, OWCP found that appellant established that the claimed
employment incident occurred on April 7, 2015 as alleged, but denied the claim as the medical
evidence did not demonstrate that a diagnosed condition was related to the accepted incident.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an 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.3
OWCP 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.4 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.
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.5
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 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 employee.7 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.8
Under section 8101(2) of FECA, the term “physician” includes chiropractors only to the
extent that their reimbursable services are limited to treatment consisting of manual manipulation
of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation
by the Secretary.9 Implementing regulations indicate that the diagnosis of spinal subluxation
3

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

4

20 C.F.R. § 10.5(ee) (1999, 2011); Ellen L. Noble, 55 ECAB 530 (2004).

5

Supra note 3.

6

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

7

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

8

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

9

5 U.S.C. § 8102(2); see D.S., Docket No. 09-860 (issued November 2, 2009).

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must appear in the chiropractor’s report, and a chiropractor may interpret his or her x-rays to the
same extent as any other physician.10
ANALYSIS
The Board finds that the April 7, 2015 incident occurred as alleged. However, the
medical evidence submitted by appellant is insufficient to establish a medical condition causally
related to the April 7, 2015 incident.
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition.11 No physician did so in this case.
As noted above, a chiropractor is not considered a physician under FECA without an xray diagnosing subluxation.12 Appellant submitted an April 14, 2015 report in which
Dr. Javidan, a chiropractor, indicated that appellant was under his care for lower back pain and
could not return to work. Dr. Javidan did not diagnosis a subluxation or discuss any x-ray
findings. The Board, therefore, concludes that he is not a physician as defined under FECA, and
his report is of no probative value on the issue of whether appellant sustained an injury causally
related to the April 7, 2015 incident.13
In his reports dated April 8 and 22, 2015, Dr. Schlitt provided examination findings and
diagnosed low back pain and lumbar spondylosis. However, he did not discuss the history of
injury or a cause of these diagnosed 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.14 Appellant, therefore, did not meet his burden of proof to establish that
he sustained a traumatic injury on April 7, 2015.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury in the
performance of duty on April 7, 2015.

10

20 C.F.R. § 10.311(b)(c).

11

D.D., Docket No. 13-1517 (issued April 14, 2014).

12

Supra note 9.

13

See A.O., Docket No. 08-580 (issued January 28, 2009).

14

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

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ORDER
IT IS HEREBY ORDERED THAT the May 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 6, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
WARFARE CENTER AIRCRAFT DIVISION,
Patuxent River, MD, Employer
__________________________________________

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Docket No. 16-0202
Issued: August 23, 2016

Appearances:
Stephen Domenic Scavuzzo, Esq., for the appellant1
Office of Solicitor, for the Director

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 10, 2015 appellant, through counsel, filed a timely appeal of a May 14,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e)(2014). No contract for a stipulated fee or on a contingent fee basis will be approved by the
Board. Id. An attorney’s 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 (2006). 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 established disability as of October 7, 2013, causally
related to his December 18, 2003 work injury.
FACTUAL HISTORY
On December 18, 2003 appellant, then a 41-year-old engineering/electronics technician,
injured his right leg during a work-related flight from Hawaii to Maryland. Because of severe
weather conditions, he had to remain seated during most of the first leg of the flight from Hawaii
to the Midwest. As a result of his inactivity, appellant developed a blood clot in his right leg.3
On January 6, 2004 Dr. Cameron M. Akbari, a Board-certified vascular surgeon, performed a
ligation of the right greater saphenous vein (GSV). In February 2004, OWCP accepted
appellant’s claim for aggravation of right leg superficial thrombophlebitis (ICD-9 451.0). It
subsequently expanded the claim to include right leg lymphedema (ICD-9 457.1) and acute
venous embolism and thrombosis (ICD-9 453.89).
Appellant received wage-loss compensation for temporary total disability through midJanuary 2005. Effective January 18, 2005, he returned to part-time, limited-duty capacity for
four hours per day. Appellant gradually increased to full-time, limited-duty work. On May 16,
2005 he resumed his full-time, regular duties.4 In July 2006, OWCP awarded appellant a
schedule award for 50 percent impairment of the right lower extremity due to peripheral vascular
disease.
From December 19, 2011 through January 27, 2012, OWCP paid wage-loss
compensation for temporary total disability. On the advice of Dr. Akbari, appellant was briefly
hospitalized for evaluation and treatment of a suspected right lower extremity deep vein
thrombosis (DVT). Appellant was discharged from the hospital on December 22, 2011, and
Dr. Akbari cleared him to return to work, effective February 6, 2012.
December 20 to 22, 2011 hospital treatment notes indicated that appellant had changed
jobs approximately four weeks prior. His then-current commute was reportedly 90 minutes in
each direction, whereas his previous commute was 10 minutes. When cleared to return to work
in February 2012, appellant was advised to telecommute two to three days per week. On those
days when he had to commute to/from work, appellant was instructed to ride the bus. He was
not to drive more than an hour without a break, and when traveling by airplane, appellant was
limited to a three-hour flight. Additionally, Dr. Akbari instructed appellant to wear compression
stockings at all times.

3

Appellant had preexisting phlebitis in his right leg. In September 1998, he underwent limited stripping of the
saphenous vein tributary in his right calf. Medical records from 1998 to 1999 referenced a circa 1995 right leg
“crush injury” that was reportedly diagnosed as superficial phlebitis and cellulitis. These same records revealed that
appellant was suspected of being in a hypercoagulable state, which was later diagnosed as factor V Leiden mutation.
4

Although appellant could sit, walk, and stand during the course of an eight-hour work shift, Dr. Akbari
recommended that he take a 5- to 10-minute break every four hours.

2

The employing establishment indicated that in April 2012, appellant began working for
the Naval Research Laboratory (NRL), which was headquartered in Washington, DC. Appellant
indicated that he worked in Washington, DC for a few months before returning to his previous
worksite in Patuxent River, MD. NRL established an office at the Patuxent River Naval Air
Station (NAS). Appellant’s NRL assignment (VXS-1) at NAS was located across the street from
where he previously worked, and just a 10-minute commute to/from his home. He reportedly
spent 70 percent of his time at NAS. When he occasionally had to make the 70-minute commute
to Washington, DC, appellant either carpooled or took a commuter bus.
On October 7, 2013 appellant stopped work due to right lower extremity (RLE)
complaints. That same day he saw a nurse practitioner, Kimberly Cook, who diagnosed RLE
vasculitis and advised that he remain off work for one week. Appellant’s recommended
treatment included ibuprofen, warm compresses, and elevation of the affected lower extremity.
He returned for follow-up on October 14, 2013, at which time he was seen by Dr. Leena M.
Kosandal, a Board-certified family practitioner, who diagnosed RLE phlebitis.5 Dr. Kosandal
advised appellant to remain off work at least through October 21, 2013. On October 15, 2013
appellant visited an emergency department with complaints of increased right leg and foot pain.
Dr. James I. Damalouji, a surgeon, diagnosed lower extremity thrombophlebitis, and discharged
appellant later that same day. On October 16, 2013 appellant saw Dr. Akbari, who admitted him
to the hospital for evaluation of right lower extremity cellulitis, phlebitis, and thrombophlebitis.
He remained in the hospital through October 18, 2013.
During an October 30, 2013 follow-up examination, Dr. Akbari noted that appellant was
having generalized burning pain below the knee to the right foot and “pins and needle” pain on
the plantar side of the same foot, which was not consistent with thrombophlebitis. The current
RLE physical examination revealed mild swelling and two lesions. One of the lesions was
medial to the right shin and was crusted. The other lesion was on the shin itself and there was no
break in the skin. According to appellant, the lesions had not improved since before his recent
hospitalization. Dr. Akbari indicated that he was not concerned about the noted lesions being
infected. He explained that this was a chronic condition that flared up and took a respectable
amount of time to clear. Dr. Akbari encouraged appellant to follow-up with his primary care
physician for neuropathy. He also noted that appellant would follow-up with infectious disease
within a couple weeks. Additionally, Dr. Akbari advised appellant to continue wearing
compression stockings and continue his anticoagulation therapy (Lovenox). Appellant was to
return in three months for follow-up, or sooner if necessary.
In November 2013, appellant filed a claim for compensation (Form CA-7) for temporary
total disability beginning October 7, 2013.
In a December 10, 2013 attending physician’s report (Form CA-20), Dr. Kosandal
diagnosed superficial phlebitis, lymphedema, and acute venous embolism. She identified
December 18, 2003 as the date of injury, and explained that appellant’s current condition was
employment related because a “long flight resulted in DVT.” Lastly, Dr. Kosandal indicated that
he remained totally disabled, and had been disabled since September 25, 2013.
5

Dr. Kosandal and Ms. Cook are both affiliated with the Hollywood Medical Center.

3

In a January 7, 2014 narrative report, Dr. Kosandal noted a December 2003 history of
injury while traveling on a five-hour long flight from Hawaii. She indicated that appellant was
unable to move about the plane and developed a DVT of the right leg. Dr. Kosandal further
noted that he was prescribed blood thinners and eventually underwent a ligation of the greater
saphenous vein, which in turn caused chronic thrombophlebitis and chronic lymphedema. She
also noted that appellant had been hospitalized several times and was being followed by a
vascular surgeon, Dr. Akbari. According to Dr. Kosandal, he currently experienced severe pain,
swelling, and redness to the right lower extremity. She indicated that appellant had permanent
venous insufficiency and lymphedema, which required hospitalization for IV antibiotics and IV
heparin.
Dr. Kosandal further noted that she had recently examined appellant on
December 16, 2013.6 His diagnoses included phlebitis and thrombophlebitis, lymphedema, and
acute venous embolism and thrombosis. Dr. Kosandal further indicated that appellant had been
advised that he could not perform his usual job duties, especially sitting, standing or driving for
extended periods of time. Appellant had also been advised to do minimal activity, rest with his
leg elevated above his heart several times a day, and continue wearing compression stockings to
prevent any acute venous embolism or thrombosis. Dr. Kosandal explained that since the
original incident in 2003, appellant’s condition deteriorated and he experienced more frequent
and severe episodes of thrombophlebitis. She also explained that he had permanent venous
insufficiency and would require lifelong anticoagulants. In conclusion, Dr. Kosandal noted it
was her opinion that appellant was unable to return to work indefinitely.
In a February 18, 2014 decision, OWCP denied appellant’s claim for wage-loss
compensation, finding that he failed to establish a causal relationship between the claimed
disability beginning October 7, 2013 and the accepted injury of December 18, 2003.
Appellant requested a hearing before an OWCP hearing representative and submitted
additional medical evidence.
In an April 1, 2014 narrative report, Dr. Kosandal referenced her January 7, 2014 report
and indicated that appellant currently remained unable to work due to a worsening of his
approved conditions. She further explained that appellant’s October 2013 hospitalization was a
direct result of the December 18, 2003 work-related injury. Dr. Kosandal indicated that
appellant’s hospitalization was evidence that with each episode of DVT, swelling, and superficial
thrombus, his condition worsened. She also referenced a July 2, 2012 ultrasound that reportedly
revealed that appellant’s clots had damaged the venous valves resulting in venous insufficiency.
Dr. Kosandal indicated that the result was cumulative whereby the insufficiency led to more
swelling and tissue damage, resulting in further phlebitis and thrombus in the superficial vein
system. In addition, appellant now experienced neuropathy of the right lower extremity, which
occurred during each episode of thrombophlebitis. He reportedly had not responded well to
medication to control his neuropathy. In closing, Dr. Kosandal noted that appellant was unable
to work due to a worsening of his approved condition and subsequent hospitalization in
October 2013.
6

Dr. Kosandal’s December 16, 2013 treatment notes included a diagnosis of RLE thrombophlebitis. She also
provided a December 16, 2013 disability certificate, which indicated that appellant remained unable to return to
work.

4

By decision dated May 5, 2014, OWCP’s hearing representative found that appellant’s
claim for compensation beginning October 7, 2013 was not in posture for decision. She
remanded the case to OWCP with instructions to refer appellant for a second opinion evaluation.
Additionally, the hearing representative instructed OWCP to obtain medical records regarding
appellant’s 1995 right leg crush injury.
On remand, appellant submitted June 1995 medical records regarding his right lower
extremity. The records revealed that he had been hospitalized from June 8 through 15, 1995.
The final diagnosis was acute cellulitis and lymphadenitis of the right leg and right thigh, and
right inguinal lymphadenitis. Appellant explained that what had been described as a “crush
injury” was merely an infection that arose after a plastic container banged his leg against a deck
railing. He and another coworker were carrying the 75-pound container aboard ship when
appellant lost his footing. According to appellant, he had an abrasion that did not bleed much,
but later became infected.
OWCP also received a September 3, 2013 report from Dr. Joseph P. Catlett, a Boardcertified internist with subspecialties in hematology and medical oncology. Dr. Catlett’s
treatment of appellant dated back to March 1999. He had last seen appellant on January 24,
2012, shortly after his December 2011 hospitalization.7 In his latest report, Dr. Catlett reiterated
appellant’s prior history through January 2012, including an earlier reference to a
November 2011 change of jobs that resulted in a 90-minute one-way commute. He noted that
since appellant’s last visit, he continued to take Lovenox, which he tolerated well. Dr. Catlett
also noted that appellant had right foot pain that was intermittent and related to the edema he gets
at times in his foot. Otherwise, appellant was noted to be doing well. Dr. Catlett’s impression
was “[h]istory of recurrent venous thrombotic events related to multiple factors, including
dyslipidemia, mild obesity, history of tobacco abuse, prolonged commute and hereditary
thrombophilia in the form of Factor V Leiden mutation.” He also noted that appellant would
remain on life-long anticoagulation therapy. Dr. Catlett advised appellant to return for follow-up
in six months.
In a June 24, 2014 report, Dr. Akbari indicated that appellant had been under his care
since the December 18, 2003 work-related injury of thrombophlebitis and venous insufficiency.
He also noted that because of the injury, appellant was hospitalized in October 2013. When
Dr. Akbari last examined appellant on April 2, 2014, he noted there was ongoing intermittent
RLE edema due to multiple venous thromboses, both superficial and deep. He further noted that
appellant was compliant with compression stockings. Appellant reportedly advised Dr. Akbari
that he noticed that his condition worsened with working, standing for prolonged periods of time,
and air travel. Dr. Akbari anticipated seeing appellant in follow-up on July 2, 2014. In
conclusion, he stated that appellant was unable to work due to the above-noted worsening
condition.

7

At that time, he diagnosed recurrent venous thrombotic events related to multiple factors, including
dyslipidemia, mild obesity, history of tobacco abuse, prolonged commute, and hereditary thrombophilia in the form
of factor V Leiden mutation. Dr. Catlett also noted that appellant would remain on life-long anticoagulation therapy
(Lovenox).

5

OWCP amended the statement of accepted facts (SOAF) and referred appellant for a
second opinion evaluation with Dr. James M. Salander, a Board-certified vascular surgeon. The
June 11, 20014 SOAF noted that appellant’s claim had been accepted for aggravation of right leg
superficial thrombophlebitis, right leg lymphedema, and acute venous thrombosis. There was
also a list of preexisting conditions, which included right leg phlebitis “following a crush injury
at sea….”8
In a July 22, 2014 report, Dr. Salander diagnosed chronic venous insufficiency, recurrent
superficial thrombophlebitis, recurrent cellulitis, lymphedema, and chronic regional pain
syndrome of the right lower extremity, all of which he found causally related to the
December 18, 2013 work injury.9 He further found that appellant continued to experience
residuals of the work injury and that his current disability was related to the December 18, 2003
work injury. However, Dr. Salander believed appellant was able to work and had not been
totally disabled since October 7, 2013. He provided permanent work restrictions (OWCP-5c)
that included a 6- to 8-hour limitation on sitting, less than 30 minutes of walking and standing, a
30-minute limitation on operating a motor vehicle at work, and a similar 30-minute limitation on
operating a motor vehicle to/from work. Additionally, appellant was precluded from squatting
and kneeling, and was advised to take a 15-minute break every 3 hours.
Following his July 22, 2014 examination by Dr. Salander, appellant sought treatment in
the emergency department that same evening. He complained of right calf pain after traveling
for four hours earlier in the day.
OWCP sought clarification from Dr. Salander regarding his July 22, 2014 report. In a
July 29, 2014 addendum, he noted that prior to 2003 appellant essentially had no chronic
symptoms in his right leg. Dr. Salander also noted a prior right leg injury in “1998” with “no
apparent long-term problem.”10 He then explained that appellant’s airplane ride in 2003 created
a clinical cycle of superficial thrombophlebitis, chronic pain, swelling, venous insufficiency, and
cellulitis. Dr. Salander further explained that in October 2013, appellant had a significant
exacerbation of those symptoms, and now he had a substantial new disability, along with chronic
regional pain syndrome related to the exacerbation in October 2013. Lastly, Dr. Salander stated
that appellant had been partially disabled since October 2013, and was unable to continue his
pre-October 2013 employment.
OWCP requested additional clarification, and in an August 6, 2014 addendum
Dr. Salander stated as follows: “[Appellant] has been disabled since last October due to the
occurrence of cellulitis and new pain, swelling and tenderness[,] which represents regional
sympathetic pain syndrome. He has been totally disabled from [October 7, 2013] to the present.
All of this is due to his [December 2003] work injury[.]”
8

There was no mention of the specific date or year when the right leg crush injury occurred.

9

Dr. Salander explained that as a result of recurrent episodes of superficial thrombophlebitis, appellant developed
a complex regional pain syndrome (reflex sympathetic dystrophy (RSD) or causalgia).
10

Dr. Salander later clarified that the referenced “1998” injury actually occurred in 1995. In his July 22, 2014
report, Dr. Salander noted that OWCP’s SOAF did not include a history of a blunt trauma to the right leg, which
occurred in 1995 while aboard ship “and resulted in no fractures … but did result in cellulitis.”

6

On August 14, 2014 OWCP advised appellant that his claim had been expanded to
include right lower limb RSD. However, on August 21, 2014, an OWCP senior claims examiner
advised that the August 14, 2014 decision had been issued in error. OWCP explained that
additional development was required because Dr. Salander purportedly did not have access to
medical records regarding appellant’s 1995 injury. Consequently, right lower limb RSD was no
longer one of appellant’s accepted conditions.
In a September 18, 2014 decision, OWCP denied appellant’s claim for recurrence of
disability beginning October 7, 2013. Relying primarily on Dr. Catlett’s September 3, 2013
report and Dr. Salander’s July 22, 2014 second opinion examination, OWCP found that
appellant’s current condition was not the result of a spontaneous change of his employmentrelated RLE condition. With respect to Dr. Catlett, OWCP interpreted his September 3, 2013
report as attributing appellant’s current right lower extremity complaints to, among other things,
a prolonged commute dating back to November 2011. It concluded that appellant’s prolonged
commute represented a new work factor, and advised that he file a separate occupational disease
(Form CA-2) claim. Regarding Dr. Salander’s findings, OWCP noted that the second opinion
physician attributed appellant’s disability as of October 2013 solely to the newly diagnosed
conditions of cellulitis and RSD, which have not been accepted as related to the December 18,
2013 employment injury.
Appellant requested an oral hearing before an OWCP hearing representative, which was
held on February 27, 2015. Appellant’s counsel argued that Dr. Salander’s opinion established a
causal relationship between the claimed disability beginning October 7, 2013 and the
December 18, 2003 employment injury. He also argued that OWCP misinterpreted Dr. Catlett’s
September 3, 2013 report. Lastly, counsel challenged OWCP’s finding that appellant’s so-called
prolonged commute represented a new work exposure.
By decision dated May 14, 2015, the hearing representative affirmed OWCP’s
September 18, 2014 decision, finding that the evidence of record failed to establish that appellant
was disabled due to a material worsening of the accepted work-related conditions. She noted
that Dr. Salander examined appellant on July 22, 2014 and “advised that [appellant had] been
disabled since October 2013 due to the occurrence of cellulitis and new pain, swelling and
tenderness which [represented] regional sympathetic pain syndrome.”
The hearing
representative then concluded that appellant had not “submitted any detailed rationalized medical
evidence to support that his claim for disability [was] causally related to the accepted work
injury….”
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.11 Recurrence of disability also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
11

20 C.F.R. § 10.5(x).

7

limitations due to his or her work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.12 Generally, a withdrawal of a light-duty assignment would constitute a recurrence
of disability where the evidence established continuing injury-related disability for regular
duty.13 A recurrence of disability does not apply when a light-duty assignment is withdrawn for
reasons of misconduct, nonperformance of job duties or other downsizing or where a loss of
wage-earning capacity determination is in place.14 Absent a change or withdrawal of a light-duty
assignment, a recurrence of disability following a return to light duty may be established by
showing a change in the nature and extent of the injury-related condition such that the employee
could no longer perform the light-duty assignment.15
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of establishing that the recurrence is causally related to
the original injury.16 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes that the condition is causally related to the employment injury.17 The
physician’s opinion must be based on a complete and accurate factual and medical history and
supported by sound medical reasoning.18
ANALYSIS
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden to establish his claim for compensation; however, OWCP
shares responsibility in the development of the evidence to see that justice is done.19 In this
instance, an OWCP hearing representative previously remanded appellant’s recurrence claim for
further medical development. Specifically, she instructed OWCP to refer appellant to a second
opinion specialist to determine if he continued to exhibit symptomatology causally related to the
December 18, 2003 work-related injury, and if so, whether he was disabled beginning
October 7, 2013. In accordance with the hearing representative’s instructions, OWCP referred
appellant to Dr. Salander. The current record includes Dr. Salander’s initial July 22, 2014 report,
and three addendums dated July 29, August 6, and September 9, 2014.

12

Id.

13

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).

14

20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, Part 2 -- Claims,
Recurrences, Chapter 2.1500.2b (June 2013).
15

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

16

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5
and 2.1500.6 (June 2013).
17

See S.S., 59 ECAB 315, 318-19 (2008).

18

Id. at 319.

19

William J. Cantrell, 34 ECAB 1223 (1983).

8

Based on a review of Dr. Salander’s several reports, it is unclear whether he has a full
appreciation of the current accepted conditions as outlined in the June 11, 2014 SOAF. His
July 22, 2014 diagnoses included chronic venous insufficiency, recurrent cellulitis, and chronic
regional pain syndrome of the right lower extremity, which are not among the current accepted
conditions.20 A physician’s opinion on causal relationship must be based on a complete factual
and medical background and must be supported by medical rationale.21
Under the
circumstances, additional clarification is necessary.22 Once OWCP undertakes development of
the record, it must do a complete job in procuring medical evidence that will resolve the relevant
issues in the case.23
On remand, OWCP shall obtain clarification from Dr. Salander regarding whether
appellant’s claimed disability on or after October 7, 2013 is causally related to his December 18,
2013 employment injury. Dr. Salander should also clarify whether appellant’s claim should be
expanded to include any additional conditions. After OWCP has developed the medical record
consistent with the above-noted directive, it shall issue a de novo decision.
CONCLUSION
The case is not in posture for decision.

20

It is unclear whether Dr. Salander believes these conditions have already been accepted or if he is encouraging
OWCP to accept them based on his opinion that they are related to appellant’s December 18, 2003 employment
injury.
21

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

22

See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.3f(2) (July 2011). As noted, once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case. Richard F. Williams, 55 ECAB 343,
346 (2004).
23

Richard F. Williams, id.

9

ORDER
IT IS HEREBY ORDERED THAT the May 14, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: August 23, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
BROOKLYN HEALTH & HUMAN SERVICES,
Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1522
Issued: April 22, 2019

Case Submitted on the Record

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

JURISDICTION
On August 3, 2018 appellant, through counsel, filed a timely appeal from a February 12,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

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
ISSUE
The issue is whether appellant has met his burden of proof to establish that his reactive
airway disease (RAD), allergic rhinitis, and bronchial asthma were caused or aggravated by the
accepted June 4, 2014 employment incident.
FACTUAL HISTORY
On June 20, 2014 appellant, then a 32-year-old staff pharmacist, filed a traumatic injury
claim (Form CA-1) alleging that on June 4, 2014 he experienced shortness of breath, difficulty
breathing, chest tightness, cough, dizziness, and clogged nose while in the performance of duty.
He attributed his symptoms to chemicals and fumes used to clean and wax the floors in his work
area that day. Appellant did not stop work.
Appellant was treated in the employing establishment emergency room on June 4, 2014 by
Dr. Hasmatul M. Islam, an emergency medicine physician, who diagnosed a hypersensitivity
reaction and provided bronchodilator therapy.
In a July 23, 2014 note, Dr. Magdi S. Sourour, a Board-certified internist and
pulmonologist, reported that appellant was exposed to cleaning chemicals on June 4, 2014 while
at work. He provided an impression of cough variant asthma/status post chemical bronchitis “most
likely” due to exposure to cleaning chemicals in the pharmacy. The July 23, 2014 spirometry
report indicated a mild restriction, premedication.
Several reports with accompanying spirometry test results were received from Dr. Alan J.
Schecter, a Board-certified pulmonologist. In a July 31, 2014 report, Dr. Schecter noted the
history of the June 4, 2014 chemical exposure incident and that appellant’s symptoms (a chronic
cough) returned after he completed his prescribed medication. Appellant was noted as being both
a lifetime nonsmoker and a current every day smoker. Dr. Schecter indicated that the July 31,
2014 pulmonary function study suggested mild asthma. He assessed appellant “likely with” mild
asthma induced by chemical burn cough and nasal congestion “likely” also related to chemical
burn.
In a September 4, 2014 report, Dr. Schecter noted that a pulmonary function study showed
normal function with slight decline from previous study. Appellant was noted to be an every day
smoker. Dr. Schecter provided an assessment of possible asthma, though it was not clear if his
symptoms were typical, and a diagnosis of intrinsic asthma, unspecified. In October 6 and
November 3, 2014 reports, he diagnosed asthma. Dr. Schecter noted that appellant was never a
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the February 12, 2018 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.

2

smoker and that appellant’s pulmonary function studies were normal. He also indicated, in his
October 6, 2014 report, that appellant’s cough may not be related to asthma. In a February 5, 2015
report, Dr. Schecter reported that appellant had probable asthma though his pulmonary functions
had always been near normal. He diagnosed asthma, mild persistent, with acute exacerbation.
A copy of a February 5, 2015 spirometry report was provided.
Several reports with accompanying spirometry testing were received from Dr. Sourour. In
May 11 and August 28, 2015 treatment reports, he reported a date of injury of June 4, 2014, noted
examination findings and provided an impression of occupational asthmatic cough due to chemical
exposure. Both of the May 11 and August 28, 2015 spirometry tests revealed normal results
premedication. In October 21 and November 16, 2015 reports, Dr. Sourour diagnosed
occupational exposure -- recurrent bronchial asthma. The October 21, 2015 spirometry test
revealed normal results premedication.
In a November 18, 2015 report, Dr. Sourour noted appellant’s persistent cough and
wheezing started on June 4, 2014 after he was exposed to chemical cleaning agent on the floor of
the pharmacy where he worked. Appellant was given bronchodilator therapy in the emergency
room and discharged. Dr. Sourour indicated that appellant’s past medical history was negative for
bronchial asthma, allergic rhinitis, and diabetes mellitus and that he never smoked or drank. He
summarized appellant’s visits, noting that his physical examinations were consistent with recurrent
bronchospasms. Dr. Sourour indicated that appellant’s condition most likely would last several
years and that he needed to be followed up on a regular basis as he developed a secondary bacterial
infection. He opined that the final diagnosis was reactive airway distress syndrome, occupational
asthma, secondary to exposure to chemical fumes from cleaning agents he was exposed to at his
workplace on June 4, 2014. Appellant also diagnosed chronic recurrent sinusitis and chronic
reactive tracho-bronchitis with bronchospasm.
In a January 21, 2016 letter, counsel argued that Dr. Sourour’s November 18, 2015 report
established appellant’s claim.
In a February 10, 2016 treatment note, Dr. Sourour reported new reactivation of RAD.
A February 10, 2016 spirometry indicated mild restriction premedication. In a July 13, 2016 note,
Dr. Sourour diagnosed status post RAD syndrome, obstructive lung disease, chronic trachecitis,
and allergic rhinitis. The July 13, 2015 spirometry report indicated normal spirometry results
premedication.
By development letter dated October 12, 2016, OWCP advised appellant that he initially
filed a claim for a traumatic injury which originally appeared to be for a minor injury resulting in
minimal or no lost time. It advised him that his claim was reopened because the medical bills
exceeded $1,500.00. OWCP advised appellant that exposure alone was insufficient to establish a
work-related medical condition and that the medial evidence did not substantiate the diagnoses
provided. It informed him of the type of factual and medical evidence needed to support his claim,
and provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the
requested evidence.
In a November 8, 2016 statement, appellant responded to OWCP’s development letter. He
noted that the June 4, 2014 work incident was a onetime event when the floors of the pharmacy
were stripped and waxed. Appellant indicated that he had inhaled the fumes of the toxic chemicals
3

for five hours as he was the only person on duty and could not leave the pharmacy unattended. He
also asserted that he never smoked. A Safety Data Sheet for the chemicals involved in the cleaning
agents used was provided.
By decision dated November 18, 2016, OWCP denied appellant’s claim, finding that it was
insufficient to establish an injury causally related to the accepted employment incident. It noted
that there was conflicting factual and medical evidence regarding whether he was a smoker and if
smoking could be a factor in the development of the diagnosed conditions.
OWCP continued to receive additional evidence. In February 24 and October 10, 2016
reports, Dr. Sourour diagnosed RAD after exposure to cleaning agent, and bronchial asthma. In
his October 10, 2016 report, he also noted “severe irritating secondary to exposure to cleaning
material and detergents and chlorine base.” October 10, 2016 spirometry testing was within
normal limits. In a December 14, 2016 report, Dr. Sourour noted that appellant was seen for RAD,
allergic rhinitis, and bronchial asthma.
On November 10, 2017 appellant, through counsel, requested reconsideration and provided
a December 29, 2016 report from Dr. Schecter who indicated that an error was made in appellant’s
electronic medical records dated July 31 and September 4, 2014, which documented appellant as
a current smoker. He contended that, since appellant’s first office visit, he had indicated that
appellant did not smoke. Counsel argued that Dr. Schecter’s December 29, 2016 report confirmed
that appellant was not a smoker.
OWCP received additional reports from Dr. Sourour. In an October 11, 2017 report,
Dr. Sourour indicated that spirometry premedication indicated moderate obstruction possible
concomitant restrictive defect. He provided an impression of RAD secondary to chemical and
dust exposure and allergic rhinitis. A copy of the October 11, 2017 spirometry report was
provided. In a January 26, 2018 report, Dr. Sourour diagnosed RAD secondary to chemical
exposure, allergic rhinitis, and bronchial asthma. He noted that the spirometry indicated mild
restriction premedication.
By decision dated February 12, 2018, OWCP denied modification of its November 18,
2016 decision. It found that, while the evidence indicated that appellant was not a smoker, there
was no well-reasoned medical opinion which explained how his chemical/dust exposure on one
day either caused or aggravated the diagnosed conditions of RAD, allergic rhinitis, and bronchial
asthma.
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 or specific condition for which compensation is claimed is causally related to the

4

Supra note 2.

4

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 a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.7
Second, the employee must submit medical evidence to establish that the employment
incident caused a personal injury.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship. The opinion of the physician
must be based on a complete factual and medical background, 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.9
ANALYSIS
The Board finds that appellant has not established that his RAD, allergic rhinitis, and
bronchial asthma conditions were causally related to the accepted June 4, 2014 employment
incident.
In a June 4, 2014 emergency room report, Dr. Islam initially noted appellant’s symptoms
after the employing establishment floor was cleaned. While he diagnosed a hypersensitivity
reaction, he did not provide a firm diagnosis of a particular medical condition10 or offer a specific
opinion as to whether the accepted June 4, 2014 employment incident caused or aggravated
appellant’s condition.11 Thus, Dr. Islam’s report is insufficient to meet appellant’s burden of
proof.

5
T.H., Docket No. 17-747 (issued May 14, 2018); C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine
Pendleton, 40 ECAB 1143 (1989).
6

T.H., id.; S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB
153 (1989).
7

See K.R., Docket No. 18-1388 (issued January 9, 2019); V.J., Docket No. 18-0452 (issued July 3, 2018); Bonnie A.
Contreras, 57 ECAB 364 (2006).
8

Id.

9

T.H., Docket No. 18-1736 (issued March 13, 2019); I.J., 59 ECAB 408 (2008).

10

Deborah L. Beatty, 54 ECAB 340 (2003) (in the absence of a medical report providing a diagnosed condition
and a reasoned opinion on causal relationship, appellant has not met her burden of proof).
11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

5

OWCP received a series of reports from Dr. Sourour. In a July 23, 2014 report,
Dr. Sourour reported that appellant was exposed to cleaning chemicals on June 4, 2014 while at
work and that the spirometry report indicated a mild restrictions premedication. He provided an
impression of cough variant asthma/status post chemical bronchitis “most likely” due to exposure
to cleaning chemicals in the pharmacy. As he couched his impression in terms as “most likely,”
Dr. Sourour’s opinion on causal relationship is speculative in nature. The Board has held that
medical opinions that are speculative or equivocal in character are of diminished probative value.12
Additionally, Dr. Sourour did not explain why or how exposure to cleaning chemicals would have
caused or contributed to appellant’s diagnosed condition. A medical report is of limited probative
value on the issue of causal relationship if it contains a conclusion regarding causal relationship
which is unsupported by medical rationale.13 Thus, Dr. Sourour’s report is of limited probative
value and is insufficient to establish appellant’s claim.
In reports from May 11, 2015 through November 16, 2016, Dr. Sourour provided
impressions of occupational asthmatic cough and recurrent bronchial asthma due to occupational
exposure, although the spirometry tests taken on those dates were within normal limits. In his
November 18, 2015 report, he indicated that appellant’s persistent cough and wheezing started on
June 4, 2014 after his exposure to chemical cleaning agents at the employing establishment.
Dr. Sourour opined that appellant’s diagnoses of reactive airway distress syndrome, occupational
asthma, were secondary to exposure to chemical fumes from cleaning agents he was exposed to at
his workplace on June 4, 2014. In so far as his opinion regarding causal relationship appears to be
based on the fact that appellant’s past medical history was negative for the diagnosed conditions,
the Board has held that an opinion that a condition is causally related because the employee was
asymptomatic before the injury is insufficient, without sufficient rationale, to establish causal
relationship.14
In subsequent reports Dr. Sourour reiterated appellant’s diagnoses, but did not explain the
reasons how appellant’s diagnosed conditions were caused by the June 4, 2014 employment
incident.15 The Board has held that a report is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining how a given medical
condition/disability was related to employment factors.16 Therefore, these reports of Dr. Sourour
are insufficient to establish appellant’s claim.
OWCP also received reports from Dr. Schecter. In his initial report of July 31, 2014,
Dr. Schecter noted the history of appellant’s June 4, 2014 chemical exposure and that his July 31,
2014 pulmonary function study suggested mild asthma. He assessed appellant “likely with” mild
asthma induced by chemical burn, as well as cough and nasal congestion “likely” also related to
12

See V.B., Docket No. 17-1847 (issued April 4, 2018); D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55
ECAB 206 (2004).
13

See V.B., id; S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (issued
February 6, 2009).
14

K.P., Docket No. 17-1145 (issued November 15, 2017); T.M., id.

15

See G.G., Docket No. 13-0573 (issued May 17, 2013).

16

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

6

chemical burn. However, this opinion is again speculative in nature.17 Dr. Schecter did not explain
with certainty how or why the employment-related chemical exposure would have resulted in a
chemical burn, or otherwise caused or contributed to appellant’s diagnosed conditions.18 For these
reasons, his report is insufficient to meet appellant’s burden of proof.
In his other reports, Dr. Schecter either assessed probable asthma, asthma, or intrinsic
asthma, unspecified. However, he failed to offer a medical opinion addressing whether the
diagnosed conditions were caused or aggravated by the accepted employment incident. The Board
has found that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.19
The spirometry tests of record are also insufficient to establish appellant’s claim. The
Board has held that reports of diagnostic tests lack probative value as they do not provide an
opinion on causal relationship between his employment duties and a diagnosed condition.20
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish that his diagnosed RAD, allergic rhinitis, and bronchial asthma conditions
were causally related to the accepted employment incident. As such, appellant has not met his
burden of proof.
As appellant has not submitted rationalized medical evidence establishing that his RAD,
allergic rhinitis, and bronchial asthma were caused or aggravated by the accepted June 4, 2014
employment incident, the Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his RAD,
allergic rhinitis, and bronchial asthma were causally related to the accepted June 4, 2014
employment incident.

17

See supra note 13.

18

See supra note 14.

19

See supra note 11.

20

See K.V., Docket No. 18-0723 (issued November 9, 2016).

7

ORDER
IT IS HEREBY ORDERED THAT the February 12, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 22, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADNINISTRATION MEDICAL
CENTER, Montrose, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jan Hudgins Riley, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1009
Issued: November 26, 2007

Oral Argument October 17, 2006

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

JURISDICTION
On February 27, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs decision dated January 3, 2007 which denied his reconsideration
request on the grounds that it was untimely filed and failed to establish clear evidence of error.
Because more than one year has elapsed between the last merit decision dated May 20, 1999 and
the filing of this appeal on February 27, 2007 the Board lacks jurisdiction to review the merits of
his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.

FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 44-year-old nursing assistant,
injured his right leg and lower back on March 17, 1989. The Office accepted a claim for right
leg and right hip strain; he has not returned to work since his injury. It paid appropriate
compensation for temporary total disability and placed him on the periodic rolls. By decision
dated April 15, 1997, the Office terminated appellant’s compensation, effective April 18, 1997.
In a May 20, 1999 decision,1 the Board affirmed the Office’s April 15, 1997 termination
decision. The complete facts of this case are set forth in the Board’s May 20, 1999 decision and
are herein incorporated by reference.
By letter received May 19, 2006, appellant’s attorney requested reconsideration of the
April 15, 1997 Office decision. Counsel stated that she had obtained medical evidence
subsequent to the Board’s 1999 decision which indicated that appellant had traumatic
osteoarthritis. She asserted that this evidence had not been available to appellant for the Office
and the Board to review prior to the issuance of their previous decisions. Counsel contended that
because this evidence had not been available prior to the issuance of these decisions, the Office
should consider this evidence with appellant’s reconsideration request. This evidence included:
(a) A March 4, 1976 x-ray report;
(b) An August 15, 1997 report from Dr. Robert Prestiano, Board-certified in
internal medicine, who stated that appellant was never treated for arthritis of the
right hip and did [not] walk with a cane prior to his March 17, 1989 work injury;
(c) A June 15, 1998 report from Dr. Robert H. Feldman, Board-certified in
orthopedic surgery, who stated that he had treated appellant and reviewed x-ray
results dated March 4, 1976 which indicated a normal joint architecture of the
hips with no evidence of osteoarthritis in both hips. These x-ray results did not
indicate arthritis and demonstrated only mild scoliosis of the lumbar spine;
(d) A July 7, 2000 report from Dr. Joseph Hickey, Board-certified in internal
medicine, who stated:
“There is some question as to the dating of when [appellant’s] right hip injury
occurred and when he started having trouble and required the use of a cane.
X-rays done in 1976 did not reveal any significant arthritis in my opinion but they
did reveal some mild scoliosis, but he was completely asymptomatic. [Appellant]
had his diabetes and hypertension followed all those years and never once did I
here any mention of any hip pain. On March 17, 1989 he slipped and fell while
pushing a heavy woman at [the employing establishment]. [Appellant] fell on his
right side and injured his right hip. From that time on he has been basically
limping and using a cane. Prior to that injury [appellant] did not complain to me

1

Docket No. 98-250 (issued May 20, 1999).

2

at all about hip pain or difficulty. I have no doubt that the injury caused his hip
pain. There was no cane use or complaints of hip pain prior to 1989.”
(e) A November 7, 2000 report from Dr. Feldman, who stated:
“On March 17, 1989 [appellant] injured his right hip on the job. X-rays were not
taken until one month after the injury on April 25, 1989. They were negative for
arthritis of the hips. X-rays of March 4, 1976 showed that [appellant] did not
have arthritis of either hips, only a mild scoliosis of the lumbosacral spine. I,
therefore disagree with Dr. Small’s findings that [appellant] had osteoarthritis
preexisting before March 17, 1989. Therefore[,] between March 4, 1976 and
April 25, 1989 [he] has no history of symptoms or radiographic evidence of
arthritis of either hip prior to March 17, 1989, on March 4, 1976 or at any other
time. Therefore[,] it is logical to conclude that [appellant’s] injury to his right hip
is causally related solely to his work[-]related injury of March 17, 1989.”
(e) An April 26, 2001 surgical report from Dr. Richard E. Pearl, who performed
right hip replacement surgery on appellant.
(f) A May 8, 2001 radiographic report which indicated bilateral osteoarthritis of
the hips, right worse than left, right coxa vara probably related to old trauma.
(g) An April 15, 2002 report from Dr. Feldman, who essentially reiterated the
findings and conclusions he presented in his November 7, 2000 report and stated
that the April 25, 1989 report were reviewed on April 4, 2002 showing a fracture
of the right femur;
(h) An October 14, 1998 statement from Dr. Robert A. Lois, a chiropractor, who
stated that he was personally acquainted with appellant since 1958 and that
appellant was physically active and fully ambulatory until March 17, 1989;
(i) An April 2, 1989 affidavit from appellant’s coworkers at the employing
establishment which attested that from 1981 through 1989 appellant was
employed at the employing establishment and during that period he was fully
ambulatory with no physical disabilities.
By decision dated January 3, 2007, the Office denied appellant’s request for
reconsideration without a merit review finding that he had not timely requested reconsideration
and had failed to submit factual or medical evidence sufficient to establish clear evidence of
error. It stated that she was required to present evidence which showed that the Office made an
error and that there was no evidence submitted that showed that its final merit decision was in
error.

3

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle an
employee to a review of an Office decision as a matter of right.3 This section, vesting the Office
with discretionary authority to determine whether it will review an award for or against
compensation, provides:
“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 or increase the compensation awarded; or (2) award
compensation previously refused or discontinued.”
The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, the Office has stated
that it will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.4 The Board has found that the
imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted by the Office under 5 U.S.C. § 8128(a).5
In those cases where a request for reconsideration is not timely filed, the Board had held
however that the Office must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.6 Office procedures
state that the Office will reopen an appellant’s case for merit review, notwithstanding the oneyear filing limitation set forth in 20 C.F.R. § 10.607(b), if appellant’s application for review
shows “clear evidence of error” on the part of the Office.7
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by the Office.8 The evidence must be positive, precise and explicit and
must be manifested on its face that the Office committed an error.9 Evidence which does not
raise a substantial question concerning the correctness of the Office’s decision is insufficient to

2

5 U.S.C. § 8128(a).

3

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), Gregory Griffin, 41 ECAB
186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
4

20 C.F.R. § 10.607(b).

5

See cases cited supra note 2.

6

Rex L. Weaver, 44 ECAB 535 (1993).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

8

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

9

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

4

establish clear evidence of error.10 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.11 This entails a limited review by the Office of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of the Office.12 To
show clear evidence of error, the evidence submitted must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must be of
sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office’s decision.13 The Board makes
an independent determination of whether an appellant has submitted clear evidence of error on
the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.14
ANALYSIS
The Board finds that the Office properly determined in this case, that appellant failed to
file a timely application for review. The Office issued its most recent merit decision in this case
on May 20, 1999.
Appellant requested reconsideration on May 19, 2006; thus, his
reconsideration request is untimely as it was outside the one-year time limit.
The Board finds that appellant’s May 19, 2006 request for reconsideration failed to
establish clear evidence of error. The medical reports that appellant submitted from
Drs. Prestiano, Feldman, Hickey and Pearl indicated that he had findings and symptoms of
osteoarthritis of the right hip subsequent to his 1989 work injury. However, they were of limited
probative value as they did not provide a reasoned medical opinion on the relevant issue; i.e.,
whether appellant had any continuing disability or residuals from his accepted work injury as of
April 18, 1997. The March 4, 1976 x-ray report is not relevant because it was issued 11 years
prior to the date the Office terminated appellant’s compensation. The October 14, 1998
statement from Dr. Lois, a chiropractor, does not constitute medical evidence as it does not
contain a diagnosis of subluxation based on x-ray as required by section 8101(2). Likewise, the
April 2, 1989 affidavit from appellant’s coworkers attesting to his ambulatory ability from 1981
to 1989 does not present any additional medical evidence as it does not contain an opinion from
a physician. Therefore, none of the new evidence appellant submitted addressed the underlying
issue of whether he was totally disabled as of April 18, 1997. He resubmitted a number of
reports which were previously considered by the Office in prior decisions; these reports are
cumulative and repetitive of reports previously rejected by the Office. No other evidence was
received by the Office. Therefore, appellant has failed to demonstrate clear evidence of error on
the part of the Office.

10

See Jesus D. Sanchez, supra note 3.

11

See Leona N. Travis, supra note 9.

12

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

13

Leon D.Faidley, supra, note 3.

14

Gregory Griffin, supra note 3.

5

The Office reviewed the evidence appellant submitted and properly found it to be
insufficient to prima facie shift the weight of the evidence in favor of appellant. Consequently,
the evidence submitted by appellant on reconsideration is insufficient to establish clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review. The Board finds that the Office did not abuse its discretion in denying further merit
review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of the Office in his reconsideration request dated May 19, 2006. Inasmuch as appellant’s
reconsideration request was untimely filed and failed to establish clear evidence of error, the
Office properly denied further review on January 3, 2007.
ORDER
IT IS HEREBY ORDERED THAT the January 3, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6