United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.N., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Atlanta, GA, Employer
__________________________________________

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

Docket No. 12-123
Issued: June 12, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 27, 2011 appellant, through her attorney, filed a timely appeal of the June 30,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) terminating her
compensation benefits. 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 wage-loss compensation and
medical benefits effective December 4, 2010.
On appeal, counsel contends that the termination of appellant’s compensation is not
supported by the medical opinion of Dr. Alexander N. Doman, a Board-certified orthopedic
surgeon and an OWCP referral physician, whose opinion is insufficiently rationalized to carry
the weight of the medical opinion as his report inaccurately stated that Dr. Michael G. Hogan, a

1

5 U.S.C. § 8101 et seq.

prior impartial medical specialist and Board-certified orthopedic surgeon,2 and Dr. Harold H.
Alexander, a prior OWCP referral physician,3 found that appellant had no continuing residuals
and disability resulting from her employment injuries. He did not review the November 29,
2006 and January 18, 2007 reports of Dr. Hogan as they were not contained in the case record.
Dr. Doman relied on an outdated statement of accepted facts (SOAF) that did not comply with
Chapter 2.809.8 of OWCP’s procedures.4 The July 13, 2005 SOAF did not address any factual
information from 2000 to the present. It did not list the findings of Dr. Alexander and Dr. Hogan
and the referral of appellant to Dr. James M. Poindexter, Jr., a Board-certified surgeon.5 It did
not note the closure of her vocational rehabilitation file due to her poor medical prognosis. The
SOAF did not note the employing establishment’s investigative memorandum which indicated
that appellant engaged in activities that contraindicated her work injuries and restrictions.
Counsel asserts that OWCP improperly relied on the investigative videotape as the employing
establishment failed to provide appellant with copies of the entire videotape and field notes from
actual agents who conducted surveillance. Lastly, he asserts that the summary investigative
report did not comport with the actual events shown on the videotape.
FACTUAL HISTORY
This case has previously been before the Board.6 In a June 2, 2000 decision, the Board
reversed an OWCP decision dated August 9, 1996, terminating appellant’s compensation
effective June 13, 1995 on the grounds that she no longer had any residuals or disability causally
related to her accepted employment injuries of laceration of the right ankle and an embolism.
The Board also reversed OWCP’s finding that appellant forfeited her right to $12,785.07 in
compensation which created an overpayment of compensation for the period April 20, 1994 to
March 31, 1995 because she failed to report earnings from employment. The facts and the

2

In a November 8, 2005 medical report, Dr. Hogan advised that appellant’s right foot symptomatology which
included subjective complaints of pain far exceeded the September 6, 1991 work injury. He opined that, based on
his clinical findings, she was not totally disabled and could return to work in a sedentary position with restrictions
due to her employment deconditioning and subjective pain.
3

In an August 22, 2005 report, Dr. Alexander advised that appellant’s right ankle symptoms were markedly out
of proportion to his physical findings and the type of work injury. He opined that she did not have any disability or
restrictions related to her work-related injury or require any further medical treatment based on his objective
findings. Dr. Alexander advised that appellant could perform light-duty work as a mail sorter with restrictions.
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.8
(September 2009).
5

In a report dated March 8, 1995, Dr. George C. Lambros, Jr., an orthopedic surgeon, referred appellant to
Dr. Poindexter for a vascular examination of the left leg to rule out complication of her right leg injury by favoring it
when it was symptomatic.
6

Docket No. 97-922 (issued June 2, 2000).

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circumstances of the case as set forth in the Board’s prior decision are incorporated herein by
reference.7
By letter dated November 2, 2009, OWCP requested that appellant submit an updated
medical report from an attending physician regarding her employment-related injuries.
On December 29, 2009 Dr. Kevin F. Smith, an attending Board-certified occupational
medicine physician, advised that appellant was permanently and totally disabled for work for an
undetermined period of time due to her progressive condition with associated chronic pain. She
had vascular bilateral leg problems that included clots and superficial chronic Achilles tendinitis.
Dr. Smith opined that appellant had present and persistent residuals of her accepted conditions.
On August 3, 2010 OWCP referred appellant, together with a SOAF and the medical
record, to Dr. Alexander N. Doman, a Board-certified orthopedic surgeon, for a second opinion.
In an August 26, 2010 medical report, Dr. Doman obtained a history of the September 6, 1991
employment injuries. He reviewed the medical record stating that, Dr. Smith reported in 1995
that appellant had no disability. Dr. Dorman further stated that, “Dr. Alexander found that
[appellant’s] symptoms were markedly out of proportion to the physical findings. Dr. Alexander
again found that there is no disability orthopedically.” Dr. Doman also stated that there was
another examiner, “Dr. Hogan, orthopedic surgeon, who examined this claimant and found that
her symptoms far exceeded the apparent injury. This examination was performed on
November 8, 2005.” On examination, Dr. Doman reported that appellant used a cane for
ambulation. She fell to the ground during the examination. He stated that this incident was a
deliberate act on her part to deceive him and his staff. Dr. Doman reported normal findings on
physical examination. There was no muscular atrophy or wasting of the lower extremities.
Appellant had full range of motion of her ankles and feet. There was no deformity of the ankle.
There was no evidence of subtalar instability or significant residual scar from a previous history
of a small laceration. Pulses and sensation were intact. Dr. Doman reported normal findings on
x-ray examination of the right ankle and foot. He advised that appellant was malingering based
on his normal orthopedic examination findings. Dr. Doman opined that the accepted conditions
had fully resolved and there were no disabling residuals of the accepted conditions. There were
no physical findings to support disabling residuals. He advised that appellant had reached
maximum medical improvement. Dr. Doman concluded that she could perform her usual work
duties with no restrictions and that no further medical treatment was necessary.
On September 9, 2010 the employing establishment submitted an investigative
memorandum dated August 23, 2010 on the grounds that she was not totally disabled and could
return to work. The report noted that video surveillance obtained of appellant from March 19
to 25, 2010 showed her bending, walking, standing, negotiating steps, jumping from a deck,
carrying large pieces of wood, while working in her yard and shopping. Appellant was also

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OWCP accepted that on September 6, 1991 appellant, then a 29-year-old letter sorter machine operator,
sustained a laceration of the right ankle and embolism when a shelf fell and struck the shin of her right ankle.
OWCP accepted her claim for laceration of the right ankle and an embolism. She stopped work on
September 8, 1991. Appellant returned to limited-duty work in October 1991 and worked until 1994. OWCP paid
her appropriate wage-loss compensation and medical benefits.

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observed driving a car. When she arrived at her appointment with Dr. Doman on August 18,
2010 she was assisted from a car by a male driver. Appellant walked very slowly using a cane.8
On October 6, 2010 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits based on Dr. Doman’s medical opinion. Appellant was
advised that she had 30 days to submit additional evidence in response to the proposed
termination.
A March 8, 1995 report from Dr. George C. Lambros, Jr., an orthopedic surgeon, advised
that appellant had right chronic and acute Achilles tendinitis and that she was totally disabled for
work. In a September 13, 1995 report, Dr. Lambros advised that appellant’s occasional acute
and chronic Achilles tendinitis was caused by the September 6, 1991 employment incident. He
reiterated his prior opinion that she was totally disabled for work.
In a September 28, 1996 report, Judith M. Zink, a registered nurse, explained why a
lower extremity venous duplex was a more appropriate diagnostic test than a flat plate x-ray of
the lower extremity in diagnosing deep venous thrombosis.
In a December 3, 2010 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective December 4, 2010. It found that the medical evidence she
submitted was insufficient to outweigh the weight accorded to Dr. Doman’s opinion.
By letter dated December 28, 2010, appellant, through her attorney, requested an oral
hearing before an OWCP hearing representative.
In a June 30, 2011 decision, an OWCP hearing representative affirmed the December 3,
2010 termination decision, finding that the weight of the medical opinion evidence rested with
Dr. Doman’s August 26, 2010 report.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
her employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.9 OWCP’s burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.10 Furthermore, the right to medical benefits for an accepted
condition is not limited to the period of entitlement for disability. To terminate authorization for

8

On September 27, 2010 OWCP indicated that it would send Dr. Doman a copy of the employing establishment’s
surveillance videotape DVD. However, the record does not indicate that Dr. Doman actually reviewed this
evidence.
9

Jason C. Armstrong, 40 ECAB 907 (1989).

10

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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medical treatment, OWCP must establish that a claimant no longer has residuals of an
employment-related condition that requires further medical treatment.11
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits as of December 4, 2010. OWCP accepted that she sustained a laceration
of the right ankle and embolism while in the performance of duty on September 6, 1991.
Appellant received appropriate disability compensation and has not returned to work. To
determine the extent and degree of any employment-related condition or disability, OWCP
referred her for a second opinion evaluation by Dr. Doman.
In an August 3, 2010 report, Dr. Doman provided an extensive review of appellant’s
medical history and reported examination findings. He found that there were no clinical findings
of any residuals of the accepted work injuries. Dr. Doman opined that appellant displayed
malingering on his normal physical examination. He found no muscular atrophy of the lower
extremities, deformity of the ankle and subtalar instability or significant residual scar from a
previous history of a small laceration. Dr. Doman found full range of motion of the ankles and
feet and intact pulses and sensation. He reported normal findings on x-ray examination of the
right ankle and foot. Dr. Doman opined that appellant’s accepted conditions had fully resolved
and she had no disabling residuals of these conditions. He further opined that she could perform
her usual work duties with no restrictions.
The Board finds that Dr. Doman’s report represents the weight of the medical evidence
and that OWCP properly relied on his report in terminating appellant’s compensation benefits on
December 3, 2010. Dr. Doman’s opinion is based on proper factual and medical history as he
reviewed an SOAF and her prior medical treatment and test results. He also related his
comprehensive examination findings in support of his opinion that the accepted work-related
conditions had resolved and that she had no employment-related disability. Dr. Doman reported
no basis on which to find that appellant had any continuing disabling residuals of her accepted
laceration of the right ankle and embolism.
Appellant submitted a March 8, 1995 report and a duplicative report dated September 13,
1995 from Dr. Lambros. These records substantially predate the termination of benefits and do
not specifically address how any continuing condition or disability was causally related to the
September 6, 1991 work injuries and, therefore, are of limited probative value.12
The September 28, 1996 report from Ms. Zink, a registered nurse, has no probative
medical value as a nurse is not defined as a physician under FECA.13

11

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

12

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

13

See 5 U.S.C. § 8101(2); G.G., 58 ECAB 389 (2007).

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There is no other medical evidence contemporaneous with the termination of appellant’s
benefits which supports that she has any continuing residuals or disability from her employmentrelated conditions. OWCP, therefore, met its burden of proof to terminate compensation.
On appeal, appellant’s counsel contended that the termination of appellant’s
compensation was improper and should not have been based on Dr. Doman’s opinion. He
argued that Dr. Doman inaccurately stated that Dr. Hogan and Dr. Alexander found that
appellant had no continuing employment-related residuals or disability. However, contrary to
counsel’s contention, both physicians found that she had no employment-related residuals or
disability and that she could return to sedentary, light-duty work with nonemployment-related
restrictions. Dr. Hogan and Dr. Alexander both stated that there were no objective findings to
support appellant’s subjective symptomatology.
Counsel also contended that Dr. Doman was not provided all the medical evidence of
record. OWCP’s procedures state that copies of pertinent medical reports in the case file should
be sent to the examining physician for review.14 There is no requirement that an examining
physician must list every medical report reviewed. Medical reports should contain dates of
examination or treatment, clinical history, detailed description of physical findings, results of xray or laboratory tests, diagnosis, prognosis, description of impairment if any, specific limitations
for work, clinical course of treatment, a reasoned opinion on causal relationship and a detailed
description of the employee’s work tolerance limitations in any case where the issue is the
claimant’s ability to return to work.15 The record reveals that OWCP sent appellant’s medical
records to Dr. Doman at the time of the referral. In his August 26, 2010 report, he noted that he
reviewed the medical record and stated that, Dr. Alexander found that appellant’s symptoms
were markedly out of proportion to the physical findings. Dr. Alexander again found that “there
is no disability orthopedically.” Dr. Doman also stated that there was another examiner,
“Dr. Hogan, orthopedic surgeon, who examined this claimant and found that her symptoms far
exceeded the apparent injury. This examination was performed on November 8, 2005.” Thus,
based on the above, the Board finds that the evidence of record bears out that OWCP sent all of
appellant’s medical records to Dr. Doman in accordance with its procedures,16 and that the
physician reviewed all of appellant’s medical records.
Counsel further contended that the July 13, 2005 SOAF relied upon by Dr. Doman was
deficient as it did not comply with Chapter 2.809.8 of OWCP’s procedures. It was outdated and
did not address the findings of Dr. Alexander and Dr. Hogan, the referral to Dr. Poindexter,
factual information from 2000 to the present, the closing of appellant’s vocational rehabilitation
file due to her poor medical prognosis and the findings of the employing establishment’s
investigative memorandum regarding appellant’s physical capabilities. In securing the opinion
of a medical specialist, OWCP’s procedures note that an SOAF and questions are to be prepared

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.3(c)(3)
(July 2011).
15

Id. at Chapter 3.600.6 (October 1990).

16

See supra note 14.

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by the claims examiner for use by the physician.17 Specifically, the claims examiner is required
to correctly set forth the relevant facts of the case, including the employee’s date-of-injury, age,
job held when injured, name of employing establishment, the mechanism of injury and any
conditions claimed or accepted by OWCP.18 The procedure manual notes that not all
information contained in a case record may bear on the issues to be resolved and cautions the
claims examiner from including material which is inappropriate or prejudicial to the claim.19
The SOAF provided to Dr. Doman is consistent with OWCP procedures and included necessary
information, including a chronological account of the incident alleged by appellant and
specifically identifying the September 6, 1991 employment incident and conditions found to
have arisen out of the performance of duty. Further, OWCP forwarded the medical evidence to
Dr. Doman. In his August 26, 2010 report, Dr. Doman stated that he reviewed the medical
record and specifically noted reports of Dr. Alexander and Dr. Hogan. Although the referral of
appellant to Dr. Poindexter was not listed in the SOAF, there is no requirement that all
physicians must be listed. The closure of appellant’s vocational rehabilitation file and the
employing establishment’s investigative findings do not constitute medical evidence and are not
relevant to the issue in this case of whether OWCP properly terminated appellant’s compensation
and medical benefits on the grounds that she no longer had any residuals or total disability
causally related to the September 6, 1991 employment injuries.20 For the stated reasons, the
Board finds that the evidence of record does not support appellant’s contentions.
Counsel’s contention that OWCP improperly relied on the investigative memorandum
because the employing establishment failed to provide appellant with copies of the memorandum
and surveillance agents’ field notes and the memorandum did not comport with actual events
shown on the videotape is not relevant to the medical issue in this case, whether OWCP properly
terminated her compensation and medical benefits on the grounds that she no longer had any
employment-related residuals and total disability.21 The Board finds, therefore, that counsel’s
argument does not establish that OWCP did not meet its 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.

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.5
(October 2005).
18

Id.

19

Id. at Chapter 2.809.6(a) (September 2009). Other information pertaining to prior medical history, medical
treatment received, the employee’s personal habits and off-duty or family activities and description of the
employee’s work may be included as the case warrants.
20

See Carol A. Lyles, 57 ECAB 265 (2005) (whether a particular injury caused an employee disability from
employment is a medical issue which must be resolved by competent medical evidence).
21

Id.

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CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation effective
December 4, 2010 on the grounds that she no longer had any residuals or disability causally
related to her accepted employment-related laceration of the right ankle sprain and embolism.
ORDER
IT IS HEREBY ORDERED THAT the June 30, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2012
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sequim, WA, Employer
__________________________________________

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Appearances:
John E. Goodwin, Esq., for the appellant
No appearance, for the Director

Docket No. 08-540
Issued: November 24, 2008

Oral Argument October 1, 2008

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

JURISDICTION
On December 3, 2007 appellant, through her attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ merit decision dated October 27, 2007 terminating her
compensation and medical benefits. Pursuant to 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 the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective October 27, 2007.
FACTUAL HISTORY
On October 2, 2001 appellant, then a 40-year-old rural mail carrier, filed an occupational
disease claim alleging that she developed repetitive strain of the right arm and shoulder and right
rotator cuff strain due to continuous lifting, reaching and pulling in the performance of duty. She
stated that she first became aware of her condition on December 18, 2000. Appellant underwent
surgical excision of a lemon size mass in her right armpit on December 27, 1999. Within the

first week following surgery, she developed lymphedema in the right upper extremity with pain
radiating down the arm to the elbow. Appellant underwent physical therapy for lymphedema
and began wearing a compression sleeve. The Office accepted her claim for right shoulder and
upper arm strain on January 8, 2002.
By decision dated May 8, 2002, the Office denied appellant’s claims for compensation.
Appellant requested reconsideration on November 12, 2003. By decision dated January 12,
2004, it denied her request, finding that it was untimely filed and did not establish clear evidence
of error. The Office began paying compensation on July 31, 2001. It entered appellant on the
periodic rolls on April 6, 2007.
Appellant’s attending physician, Dr. Margaret Forgette, a Board-certified physiatrist,
supported appellant’s partial disability for work due to an employment-related repetitive strain
injury of the right upper extremity. The Office referred appellant for a second opinion evaluation
with Dr. David Smith, a Board-certified orthopedic surgeon. In a report dated September 12,
2006, Dr. Smith noted that appellant’s right shoulder symptoms began within a week of her
December 1999 surgery. He examined appellant and diagnosed myofascial pain right shoulder
region. Dr. Smith opined that this condition was directly related to appellant’s 1999 surgery
rather than to her employment duties. He opined that appellant could perform her date-of-injury
position without restrictions.
Dr. Forgette completed reports on September 7 and 8, 2006 and a work capacity
evaluation on September 22, 2006. She diagnosed right shoulder repetitive strain injury with
intermittent impingement and stated that appellant was capable of returning to modified work
and had been capable of performing some work since August 17, 2001. Dr. Forgette opined,
however, that appellant was not capable of performing her date-of-injury position. She restricted
appellant’s repetitive movements, reaching, pushing, pulling and lifting. In a report dated
October 6, 2006, Dr. Forgette disagreed with Dr. Smith’s conclusions and stated that appellant
had a repetitive strain injury due to repetitive reaching and lifting in the performance of duty.
The Office found a conflict of medical opinion between Drs. Smith and Forgette
regarding appellant’s diagnoses, whether her condition was employment related and the extent of
her disability. It referred her to Dr. William Thieme, a Board-certified orthopedic surgeon, for
an impartial medical examination. In a report dated January 2, 2007, Dr. Thieme reviewed the
medical records as well as the statement of accepted facts and examined appellant. He found
that appellant had limited range of motion in the right shoulder and diagnosed right shoulder pain
related to repetitive lifting and reaching activities with mild limitation of range of motion and
mild weakness in the right hand “not work related.” Dr. Thieme noted that appellant related her
current shoulder pain to heavy activities, reaching, stretching and sleeping in the wrong
positions. He noted that appellant stated activities at home such as caring for her sick mother
and caring for her mother-in-law reproduced the symptoms that occurred with her work
activities. Dr. Thieme noted that appellant had not worked for over five years. He opined that
appellant’s preexisting right shoulder condition was aggravated by work activities. Dr. Thieme
stated, “It is my opinion that [appellant’s] right upper extremity condition is the consequence of
the operation to excise the lipoma in the axilla. Her condition is aggravated by work activities as
well as activities at home. [Appellant’s] present condition is not the consequence of her work
activities.” He stated that appellant’s condition had plateaued and opined that appellant could

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return to limited-duty work accommodating her nonwork-related right shoulder condition.
Dr. Thieme completed a work capacity evaluation and indicated that appellant should not work
above her head.
Dr. Forgette completed a report on February 6, 2007 and indicated that appellant’s
symptoms had improved. She diagnosed right shoulder repetitive strain injury and impingement.
The Office proposed to terminate appellant’s compensation and medical benefits based
on Dr. Thieme’s report in a letter dated July 12, 2007. It allowed appellant 30 days to respond.
On August 7, 2007 appellant stated, “I disagree with your July 12, 2007 Notice of Proposed
Reduction. I still have pain and limitations and I believe those limitations are due to my job.”
By decision dated October 25, 2007, the Office terminated appellant’s compensation and
medical benefits effective October 27, 2007. It stated, “[Y]our right upper extremity condition is
preexisting and the consequence of a nonwork-related right axillary lipoma resection conducted
in December 1999 and not the consequence of any factors of your employment.”
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.2 The Office’s burden of
proof in terminating compensation includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.3 The right to medical
benefits for an accepted condition is not limited to the period of entitlement of disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition, which require further medical treatment.4
The Federal Employees’ Compensation Act provides that, if there is a disagreement
between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.5 The
implementing regulation states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician of an Office
medical adviser or consultant, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has had no prior connection with the case.6 It is well established
that, when a case is referred to an impartial medical specialist for the purpose of resolving a
1

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

2

Mary A. Lowe, 52 ECAB 223, 224 (2001).

3

Gewin C. Hawkins, 52 ECAB 242, 243 (2001).

4

Mary A. Lowe, supra note 2.

5

5 U.S.C. §§ 8101-8193, 8123.

6

20 C.F.R. § 10.321.

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conflict, the opinion of such specialist, if sufficiently well rationalized and based on proper
factual and medical background must be given special weight.7
ANALYSIS
The Office accepted appellant’s claim for right shoulder and upper arm strain.
Appellant’s attending physician, Dr. Forgette, a Board-certified physiatrist, supported that
appellant was partially disabled due to this condition and that this condition was due to her
employment duties of repetitive reaching and lifting in the performance of duty. The Office
referred appellant for a second opinion evaluation with Dr. Smith, a Board-certified orthopedic
surgeon. In a September 12, 2006 report, Dr. Smith opined that appellant’s right shoulder
condition was not caused or aggravated by her employment, but was attributable to her 1999
surgery and resulting lymphedema. He found that appellant could return to her date-of-injury
position with no work restrictions. Due to the disagreement between appellant’s physician,
Dr. Forgette and the Office referral physician, Dr. Smith regarding the nature of appellant’s
condition, whether it was employment related and the extent of her disability, the Office properly
found a conflict of medical opinion evidence. It referred appellant to Dr. Thieme, a Boardcertified orthopedic surgeon, for an impartial medical examination to resolve this conflict.
Dr. Thieme reviewed appellant’s medical history, the history of injury and statement of
accepted facts. He examined appellant and noted that she lacked full range of motion in her right
shoulder and that she had weakness in her right hand. Dr. Thieme diagnosed right shoulder pain
related to repetitive lifting and reaching activities and opined that appellant’s current condition
was not work related noting that she had not worked for over five years. He stated that
appellant’s preexisting right shoulder condition had been aggravated by work activities.
Dr. Thieme noted that her current activities at home also aggravated her right shoulder condition.
He opined that appellant’s right shoulder condition was not caused by her employment, but was
the consequence of the operation to excise the lipoma. Dr. Thieme stated that appellant’s current
condition was not due to her employment. He indicated that appellant could return to work and
that her current restrictions were not due to her accepted employment injury.
As an impartial medical examiner, Dr. Thieme’s report is entitled to special weight if
based on a proper factual and medical background and supported by medical rationale. The
Board finds that Dr. Thieme’s opinion cannot be accorded such weight. Dr. Thieme made
statements that were clear and unequivocal, but he offered little if any medical explanation to
support his conclusion. He opined that appellant’s right shoulder condition was due to her 1999
surgery rather than her accepted employment activities, but did not explain how he reached this
conclusion. The Board has held that medical conclusions unsupported by rationale are of little
probative value.8 A physician’s opinion on causal relationship must be one of reasonable
medical certainty, but it must also be supported with affirmative evidence, explained by medical
rationale and based on a complete and accurate medical and factual background.9 In this case,
7

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

8

Willa M. Frazier, 55 ECAB 379, 384 (2004).

9

Connie Johns, 44 ECAB 560 (1993). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (discussing the
factors that bear on the probative value of medical opinions).

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the certainty with which Dr. Thieme expressed his opinion cannot overcome the lack of medical
rationale.
Also, Dr. Thieme’s opinion is not in keeping with the statement of accepted facts. The
Office provided Dr. Thieme with a statement of accepted facts to use as a frame of reference in
forming his opinion. The statement of accepted facts provides that the Office accepted
appellant’s claim for a right shoulder and upper arm strain. As a medical professional,
Dr. Thieme is entitled to reject such a diagnosis, but if he does so without convincing medical
rationale, his opinion is of diminished probative or evidentiary value. The Office’s procedure
manual states that, when the impartial physician does not use the statement of accepted facts as
the framework in forming his or her opinion, the probative value of the opinion is seriously
diminished or negated altogether.10 For these reasons, the Board finds that the Office did not
meet its burden of proof.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits.

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3(10)
(October 1990); see Jurelle M. Vanderhoff, 37 ECAB 152, 157 (1985) (finding that the report of the impartial
medical specialist could not be used to resolve the conflict at issue because it deviated from the statement of
accepted facts and went beyond the field of his medical expertise).

5

ORDER
IT IS HEREBY ORDERED THAT the October 27, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 24, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jersey City, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1193
Issued: October 23, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 10, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decisions dated July 16 and October 3, 2007. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a lung condition caused by traumatic exposure in
the performance of duty.
FACTUAL HISTORY
Appellant, a 50-year-old vehicle operator assistant, filed a Form CA-1 claim for benefits
on January 15, 2006, alleging that she sustained stress and sarcoidosis on January 24, 2005. The
employing establishment controverted the claim on the form, stating that its records indicated
that she did not report her injury or seek medical attention at the time of the alleged injury.

In a statement dated January 15, 2006, received by the Office on May 5, 2006, appellant
stated:
“On January 24, 2005, I reported to work.... I was sitting at one of the computers
where I was [working.] [A] custodian came out of the manager’s office sweeping
the floor. [T]he dirt and soot was in the air. I asked him not to sweep. [H]e
refused. I left the office [hoping] the dust would settle. [T]he dust filled my nasal
passages ... and lungs. I was in pain. The custodian left [and] I returned to my
work station but I was in pain when I breathed. I looked at the side of my desk.
[T]he custodian left a pile of dust ... by the side of my desk. I cleaned it up because
I could not find the custodian.”
Appellant alleged that the dust accumulated at her worksite on a regular basis; by the end of
her eight-hour shift there typically would be a pile of soot and dust in her work area. She asserted
that the heating system is rarely cleaned and that she needed to put in a work order to clean and
strip the floor because it had piled up so deeply and had embedded into the floor. Appellant stated
that she told her supervisor that she had a very painful, work-related respiratory condition caused
by the dust and soot which was constantly accumulating in her work area. She asserted, however,
that he did not fill out the proper form with the employing establishment’s superintendent.
By letter dated August 18, 2006, the Office advised appellant that she needed to submit
additional factual and medical evidence in support of her claim. It stated that she had 30 days to
submit the requested information.
In a statement dated September 26, 2006, appellant stated that she experienced constant
exposure to dust and fumes while working for the employing establishment from 1982 to 2005.
She indicated that she retired from the employing establishment on December 30, 2005.
In an undated e-mail, received by the Office on December 4, 2006, the employing
establishment’s manager Dian Turner stated that management’s personnel and attendance records
indicated that appellant was not at work on January 24, 2005, the date of the alleged accident.
Ms. Turner stated that appellant also was not at work the week before or for three months after the
date of the alleged accident.
By decision dated December 8, 2006, the Office denied appellant’s claim, finding that she
failed to establish fact of injury.
On December 20, 2006 appellant requested a hearing, which was held on
September 27, 2007. At the hearing, her attorney stated that appellant had a history of exposure
to dust and fumes while working at the employing establishment. Counsel was given the option
to change the claim from one based on traumatic injury to one based on an occupational
condition. However, he stated that he would continue pursuing a claim for traumatic injury but
would change the date of exposure from January 24, 2005 to “sometime in 2004.” Counsel
stated that he had struggled with appellant to pinpoint the time period where her exposure took
place; she ultimately produced paperwork indicating the exact date of exposure. He reiterated
the allegation appellant made in her January 2006 statement that her lung condition was caused
by maintenance workers sweeping up dust at her worksite. Counsel also stated that appellant had

2

a previous, accepted claim for a lung condition which occurred in March 2003. He stated that
she received compensation for a period of disability, then returned to work at a different location.
By decision dated July 16, 2007, an Office hearing representative affirmed the
December 8, 2006 Office decision. He stated that appellant initially filed a claim for traumatic
injury based on exposure to toxic fumes, alleging that January 24, 2005 was the date of exposure.
The hearing representative noted, however, that appellant attempted to change the date of injury
after the employing establishment indicated that she was not at work on the alleged date of
exposure. He noted that neither appellant nor her attorney were able to ascertain the exact date of
alleged injury.
By letter dated July 27, 2007, appellant’s attorney requested reconsideration. He requested
that the date of injury and exposure to dust and fumes be changed from January 24, 2005 to
October 6, 2004.
In a report dated April 24, 2004, Dr. Clifton Howell, Board-certified in internal medicine,
stated that appellant was being treated for sarcoidosis. He released her to return to work with
restrictions of no exposure to dust, fumes or exhaust fumes. Dr. Howell stated that appellant’s
prognosis was fair.
In a May 26, 2005 report, Dr. Howell stated that he was treating appellant for sarcoidosis,
depression, anxiety and memory loss. He advised that she had been stable until the previous year,
when she was hospitalized for major depression. Dr. Howell related that appellant’s conditions
had progressed and stated that she was no longer able to work. He noted that she was experiencing
memory lapses which interfered with her work performance.
In a May 2, 2007 form report, Dr. Howell indicated that he had been treating appellant for
sarcoidosis since October 2004. He stated that appellant’s symptoms first appeared on October 22,
2004 and stated that he had not treated her since May 2, 2005. Appellant also submitted several
authorization of medical treatment slips from March 31, 2003 to April 15, 2005; an October 28,
2004 employing establishment medical information form and clock rings depicting her attendance
at the employing establishment during October 2004.
In a July 15, 2007 statement, appellant indicated that she was exposed to dust, soot and
fumes at her worksite on October 4, 2004, causing her to experience extreme pain and difficulty
breathing.1
Appellant submitted a September 10, 2007 witness statement from her former coworker,
Fred Wilbeck, who stated:
“As an employee at the [employing establishment], part of my employment was as
a clerk in transportation. While there I worked with [appellant] in van control. As
1

Appellant made essentially the same allegations and depicted the same scenario regarding an unresponsive
maintenance worker that she made in her January 2006 statement; the only difference between the first and second
statements was that she changed the date of the alleged incident from January 24, 2005 to October 6, 2004 in her
second statement.

3

part of our assignments, we were required to work in different areas of that
department.
“Two of the areas of our assignment were at the two inbound gates at the truck
entrance. What these are basically are modular trailers used as our office. Each
office has sliding windows, used to speak to the drivers and an air conditioner that
seldom worked. Neither office had any type of exhaust system to remove smoke or
foul air that would enter from the exhaust of the tractor trailers. We would often
have to clean our desks and office equipment from the dirt and soot that would
accumulate.
“Due to the nature of our work, we would have to open the windows at the same
time. Drivers would open the door to enter our office. In the winter, this would
cause what little heat we had to go right out the open windows. We had baseboard
heat, but it was never enough to keep the building warm in the winter.
“Another work area was in van control. Here we worked in the dispatch and
control office. For many years, the central air for that building did not work and at
times during the warm weather, it was very difficult to breathe. Often during the
course of our workday, the tractors would be parked outside the windows. These
windows would be opened to get air. With that air came the exhaust from the
tractors.
“Twice while working in van control, I came to find out that the sewer main for
three bathrooms ran through our office in the control room. How I came to find
that out was that twice the sewer main ruptured and the raw sewage spilled into the
office.
“Even though a light cleaning was performed, management requested the
employees to go back to work in that office. For days after, some of the raw
sewage was still on the floor under our desks. Many times while walking with
[appellant] to the parking lot after work, she would have a hard time keeping up
with me. She mentioned that she could not get her breath.”
In a September 10, 2007 witness statement, appellant’s former coworker, Mr. Wilbeck
stated:
“[Appellant] and I worked at [the employing establishment] ... in conditions that
were extremely hazardous and unbearable. Van control was in the corner of the
building with no windows and only one door. Other employees smoked and
leaving the room was the only way to get air. Dust would enter the room from the
machines overhead and settle on the desks. When you blew your nose it would be
black from the smoke and dust.”
In a September 12, 2007 report, Dr. Howell stated:
“I took care of [appellant] for more than 10 years. The patient has a history of
sarcoidosis, depression and HIV positively in the past. [Appellant] was diagnosed
4

prior to October 2004 with sarcoidosis, which described to her primarily as an
inflammation of the lungs, which was thought to be pneumonia. However, a biopsy
as done prior to October 2004 showing sarcoidosis which is an infiltrative disease
that can cause shortness of breath, cough and weight loss. [Appellant] during this
time was visiting me in the office as outpatient after the diagnosis and she explained
that her work was making her shortness of breath and wheezing worse. I tried to
give her letters excusing her from duties in that area and tried to get her to move to
another area and there were some attempts to be made from my point of view to
have the patient accommodated for her work and her medical conditions.
“On October 6, 2004 the [appellant] stated [that] she had another exposure to the
fumes and exhaust in the cars or trucks and that made her worse. At that time, she
did come in for follow up and we did see her with these complaints in mind and
documented what had happened to her. [Appellant] stated [that] the exposure made
her more short of breath and basically she ... was unable to work. She was disabled
at that point. During that time, [appellant] did attempt to go back to work several
times. However, she was unable to do so and there were problems in terms of
returning to work because she felt short of breath and there was no accommodation
for her to go to another area…. [This] would have made her illness worse.
“The diagnosis of [appellant’s] condition is sarcoidosis, which is a firm diagnosis.
The condition certainly was made worse by being in this environment as fumes and
dust can exacerbate the pulmonary conditions of sarcoidosis.”
By decision dated October 3, 2007, the Office denied appellant’s request for modification.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
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.5 Second, the employee must
2

5 U.S.C. § 8101 et seq.

3

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

4

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

5

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

5

submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.6
The Office cannot accept fact of injury if there are such inconsistencies in the evidence as
to seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged or whether the alleged injury was in the performance of duty.7 Nor can the Office
find fact of injury if the evidence fails to establish that the employee sustained an “injury” within
the meaning of the Act. 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, as alleged, but
the employee’s statements must be consistent with surrounding facts and the circumstances and her
subsequent course of action.8 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 case doubt on an employee’s statements in
determining whether he or she has established his or her claim.9
ANALYSIS
In this case, appellant has not established fact of injury because of inconsistencies in the
evidence that cast serious doubt as to whether the specific event or incident occurred at the time,
place and in the manner alleged. She stated in her CA-1 form and January 15, 2006 statement that
she developed stress and a sarcoidosis condition caused by her working conditions on
January 24, 2005. Appellant indicated in her January 15, 2006 statement that her lung condition
was aggravated because a custodian failed to sweep and clean up dust and soot at her work area
until it had accumulated to an unhealthy level. She further alleged that her condition was
aggravated by a heating system which was rarely cleaned and emitted toxic fumes into the air.
However, this statement was contradicted by the employing establishment, which indicated that its
personnel records showed that appellant was not at work on January 24, 2005, the date of her
alleged injury/exposure to dust and fumes nor was she at work the week before or three months
after the date of the alleged exposure. Appellant can be reasonably imputed to have knowledge of
when she sustained an injury that caused her to be medically released from work.10 This
contradictory evidence created an uncertainty as to the time, place and in the manner in which
appellant sustained her alleged lung condition. Based on this contradictory evidence, the Office
properly found in its December 8, 2006 decision that appellant failed to establish that she sustained
an injury in the performance of duty on January 24, 2005.
6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(e).

7

Elaine Pendleton, supra note 3.

8

See Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541,
547 (1991).
9

See Constance G. Patterson, 42 ECAB 206 (1989).

10

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, 45 ECAB 211, 218 n.4 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of
Compensation, Chapter 2.900(b)(3) (September 1990).

6

Following the December 8, 2006 decision, appellant requested a hearing, during which her
attorney advised that she intended to change the date of her alleged traumatic exposure/injury to
another date in 2004. However, she and her attorney were unable to ascertain a date on which the
alleged exposure occurred. The Office hearing representative therefore properly affirmed the
December 8, 2006 decision finding that she failed to establish fact of injury. Appellant requested
reconsideration and submitted a July 15, 2007 statement alleging that she was exposed to dust, soot
and fumes at her worksite on October 4, 2004, causing her to experience severe pain and difficulty
breathing; reports from Dr. Howell indicating that she developed a sarcoidosis condition caused by
exposure to dust and fumes emitted by trucks and cars at the employing establishment, beginning
October 6, 2004; and statements from former coworkers indicating that the worksite was
permeated by unhealthy air due to an inadequate ventilation system, buildup of dust and soot,
exposure to truck fumes and proximity to a sewer main which ruptured and emitted raw sewage
into the work area.
The Board finds that appellant failed to submit evidence which establishes that she
sustained an injury in the performance of duty on October 6, 2004. The statements from
appellant’s former coworkers, while providing evidence of prolonged exposure to truck fumes and
unhealthy air quality, did not contain evidence indicating that she sustained a traumatic injury on
October 6, 2004 due to this exposure.11 Thus, appellant failed to submit to the Office a
corroborating witness statement in response to the Office’s request. This casts additional doubt on
appellant’s assertion that she sustained a lung condition due to traumatic exposure on
October 6, 2004. Dr. Howell indicated in his September 12, 2007 report that appellant was
diagnosed with sarcoidosis, an inflammation of the lungs, prior to October 2004. He stated that
appellant’s condition was caused by exposure to fumes and exhaust at her worksite and that she
was exposed to dust and fumes in cars or trucks on October 6, 2004. This assertion, however, was
contradicted by Dr. Howell’s May 2, 2007 form report, which stated that appellant’s symptoms
first appeared on October 22, 2004 and by her previous statements that her traumatic injury was
caused by exposure to a faulty heating system and accumulated dust and soot -- which resulted
from a custodian’s negligence -- not vehicular fumes. The Office requested that appellant submit
additional factual and medical evidence explaining how she sustained a lung condition on the dates
in question.12 Appellant failed to submit such evidence. Therefore, given the inconsistencies in
the evidence regarding how she sustained her injury, the Board finds that there is insufficient
evidence to establish that she sustained an injury in the performance of duty as alleged.13 The
July 16 and October 3, 2007 decisions are affirmed.

11

Furthermore, appellant twice indicated, in her January 2006 and July 2007 statements, that her lung condition
was caused by a buildup of dust and soot at her worksite, in addition to fumes from a faulty heating system.
12

The fact that appellant presented two different dates as the alleged date of traumatic exposure cast additional
doubt on her assertions.
13

See Mary Joan Coppolino, 43 ECAB 988 (1992) (where the Board found that discrepancies and inconsistencies in
appellant’s statements describing the injury created serious doubts that the injury was sustained in the performance of
duty).

7

CONCLUSION
The Board finds that the Office properly found that appellant failed to meet her burden of
proof to establish that she sustained a lung condition caused by traumatic exposure in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 3 and July 16, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 23, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF AGRICULTURE, FSIS
)
INSPECTION OPERATION PROGRAM,
)
Wallula, WA, Employer
)
___________________________________________ )
C.J., Appellant

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

Docket No. 07-404
Issued: May 3, 2007

Case Submitted on the Record

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

JURISDICTION
On November 28, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated June 15, 2006 which denied his claim for an
occupational disease. He also appealed an August 23, 2006 decision which denied merit review.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and
nonmerit decisions.
ISSUES
The issues on appeal are: (1) whether appellant has met his burden of proof in
establishing that he developed a ganglion cyst on his left wrist in the performance of duty; and
(2) whether the Office properly denied his request for reconsideration.

FACTUAL HISTORY
On April 17, 2006 appellant, then a 53-year-old food inspector, filed an occupational
disease claim alleging that he developed a ganglion cyst on his left wrist while performing work
duties. He became aware of his condition on March 22, 2006. Appellant did not stop work.
Appellant submitted a statement indicating that his job as a meat inspector required him
to perform repetitive duties using his left wrist. He developed a ganglion cyst on his left wrist
and his physician recommended surgery to remove it. Appellant submitted an April 14, 2006
attending physician’s report from Dr. Stanley Ling, a Board-certified internist, who diagnosed a
ganglion cyst on the left dorsal wrist and indicated with a checkmark “yes” that the condition
was caused or aggravated by employment activity.
By letter dated May 3, 2006, the Office advised appellant of the factual and medical
evidence needed to establish his claim. It requested that he submit a physician’s reasoned
opinion addressing the relationship of his claimed condition and specific employment factors. In
a letter of the same date, the Office requested that the employing establishment address
appellant’s claim.
Appellant submitted a statement advising that he worked for the employing establishment
since 1985 and his duties included inspecting organs of slaughtered cattle. He developed a
ganglion cyst on his wrist with painful numbness in the area. Appellant submitted a report from
Dr. Ling dated April 14, 2006, who noted that he presented with increased pain in his left wrist
and diagnosed ganglion cyst. Dr. Ling indicated that a trial of decompression of the ganglion
cyst was not successful and referred appellant to a surgeon. Appellant submitted a May 1, 2006
attending physician’s report from Dr. David W. Fischer, a Board-certified orthopedist, who noted
that appellant developed a left dorsal wrist mass on March 22, 2006. Dr. Fischer diagnosed
ganglion cyst and noted with a checkmark “yes” that the condition was caused or aggravated by
a work activity. He recommended an excisional biopsy of the ganglion cyst. In reports dated
May 1 and 8, 2006, Dr. Fischer noted that appellant presented with a left wrist dorsal mass which
developed on March 22, 2006. He advised that appellant would be off work pending
authorization for surgery. On June 2, 2006 appellant reported to Dr. Fischer that he performed
no activities outside of work which placed stress on his wrist. Dr. Fischer advised that appellant
had been off work for one month with no improvement in his symptoms. He opined that “more
probable than not” appellant’s condition was related to his work and should be accepted by the
Office as work related.
In a decision dated June 15, 2006, the Office denied appellant’s claim on the grounds that
the medical evidence was not sufficient to establish that his condition was caused by his
employment duties.
On July 8, 2006 appellant requested reconsideration. He submitted a June 13, 2006
report from Dr. Fischer noting that he was awaiting surgical authorization. Appellant reported
that any repetitive use of the wrist at work caused pain and asserted that none of his activities at
home caused wrist irritation. In an operative report dated July 6, 2006, Dr. Fischer performed a
repair of an acromioclavicular (AC) ligament and removed the left wrist mass.

2

By decision dated August 23, 2006, the Office denied appellant’s reconsideration request
on the grounds that his letter neither raised substantive legal questions, nor included new and
relevant evidence and was insufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that the 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. 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.1
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 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.2
ANALYSIS -- ISSUE 1
It is not disputed that appellant’s duties as a meat inspector included performing
repetitive activities using his hands and arms. However, he has not submitted sufficient medical
evidence to support that his left ganglion cyst of the wrist was caused by the implicated
employment factors. On May 3, 2006 the Office advised appellant of the type of medical
evidence needed to establish his claim.
Appellant submitted an April 14, 2006 attending physician’s report from Dr. Ling who
diagnosed ganglion cyst on the left dorsal wrist and indicated with a checkmark “yes” that the
condition was caused or aggravated by an employment activity. However, the Board has held
1

Gary J. Watling, 52 ECAB 357 (2001).

2

Solomon Polen, 51 ECAB 341 (2000).

3

that an opinion on causal relationship which consists only of a physician checking “yes” to a
medical form report question on whether the claimant’s condition was related to the history
given is of little probative value. Without any explanation or rationale for the conclusion
reached, such report is insufficient to establish causal relationship.3 In an April 14, 2006 note,
Dr. Ling also noted that he presented with left wrist increased pain and diagnosed ganglion cyst.
He recommended surgery. However, Dr. Ling did not provide a history of injury or provide a
rationalized opinion regarding the causal relationship between appellant’s diagnosed ganglion
cyst and the factors of employment believed to have caused or contributed to such condition.4
Therefore, this report is insufficient to meet appellant’s burden of proof.
Appellant also submitted an attending physician’s report from Dr. Fischer dated
May 1, 2006. Dr. Fischer noted that appellant developed a left dorsal wrist mass on
March 22, 2006 and diagnosed ganglion cyst. He noted with a checkmark “yes” that the
condition was caused or aggravated by a work activity and recommended an excisional biopsy of
the mass. As noted, however, the Board has held that an opinion on causal relationship which
consists only of a physician checking “yes” to a medical form report question on whether the
claimant’s condition was related to the history given is of little probative value. Without any
explanation or rationale for the conclusion reached, such report is insufficient to establish causal
relationship.5 In reports dated May 1 and 8, 2006, Dr. Fischer noted that appellant presented
with a left wrist dorsal mass which developed on March 22, 2006 and recommended an
excisional biopsy of the soft tissue mass. On June 2, 2006 appellant reported that he performed
no activities outside of work which placed stress on his wrist. Dr. Fischer opined that it was
more probable than not that appellant’s condition was related to his work and advised that it
should be accepted as work related. Although he noted that it was “more probable than not” that
appellant’s condition was related to his work, he provided insufficient medical rationale to
explain the basis for his conclusion. Dr. Fischer did not discuss how appellant’s work duties
would cause or contribute to the development of a ganglion cyst. Therefore, these reports are
insufficient to meet appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment, nor
is the belief that his condition was caused, precipitated or aggravated by his employment
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.6 Appellant failed to submit such evidence and the Office,
therefore, properly denied his claim for compensation.

3

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

4

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
5

Lucrecia M. Nielson, supra note 4.

6

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

4

LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,7 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulation,8 which provides that a
claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that [Office] erroneously applied or interpreted a specific point of law;
or
(ii) Advances a relevant legal argument not previously considered by the (Office);
or
(iii) Constitutes relevant and pertinent new evidence not previously considered by
[Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.9
ANALYSIS -- ISSUE 2
Appellant’s July 8, 2006 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant submitted June 13 and July 6, 2006 reports from
Dr. Fischer. In a report dated June 13, 2006, Dr. Fischer noted that appellant was awaiting
authorization for a mass excision. Appellant reported that any repetitive use of his wrist at work
caused pain and asserted that none of his activities at home would cause irritation of the left
wrist. In an operative report dated July 6, 2006, Dr. Fischer performed a repair of an AC
ligament and removal of the left wrist mass. However, these reports are not relevant as they do
not address the issue of causal relationship and they are similar to Dr. Fischer’s previously
submitted reports which were considered by the Office in its decision dated June 15, 2006 and
found deficient. Evidence that repeats or duplicates evidence already in the case record has no

7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b).

9

20 C.F.R. § 10.608(b).

5

evidentiary value and does not constitute a basis for reopening a case.10 Therefore, these reports
are insufficient to require the Office to reopen the claim for a merit review.
Appellant neither showed that the Office erroneously applied or interpreted a point of
law; advanced a point of law or fact not previously considered by the Office; nor did he submit
relevant and pertinent evidence not previously considered by the Office.”11 Consequently,
appellant was not entitled to a review of the merits of his claim pursuant to any of the three
requirements under section 10.606(b)(2).
CONCLUSION
The Board, therefore, finds that, as medical evidence does not establish that appellant
developed an employment-related injury in the performance of duty, he failed to meet his burden
of proof. The Board further finds that the Office properly denied appellant’s request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the August 23 and June 15, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 3, 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
10

See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin,
35 ECAB 1090, 1093-94 (1984).
11

20 C.F.R. § 10.606(b).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, CAYEY POST
OFFICE, Cayey, PR, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq.
Office of the Solicitor, for the Director

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Docket No. 21-1337
Issued: March 18, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 6, 2021 counsel filed an appeal from a decision of the Office of Workers’
Compensation Programs (OWCP). The Office of the Clerk of the Appellate Boards assigned
Docket No. 21-1337 to this appeal. 1
The Board has duly considered the matter and recognizes that the current appeal was not
filed by appellant or his authorized representative. Section 501.3(a) of the Board’s Rules of
Procedure provides that a “person adversely affected by a final decision of the Director [of OWCP]
or his or her authorized Representative, may file an appeal of such decision by the Board .”2 The
Board concludes that neither a “person adversely affected” by a final OWCP decision, nor an
“authorized Representative,” has filed an appeal to the Board. As such, there is no valid appeal
before the Board and Docket No. 21-1337 must be dismissed.3 Accordingly,

1

By letter dated October 8, 2021 counsel advised the Board that he did not represent appellant and had inadvertently
filed the current appeal.
2

20 C.F.R. § 501.3(a).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
3

IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1337 is dismissed.
Issued: March 18, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 08-885
Issued: March 17, 2009

Case Submitted on the Record

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

JURISDICTION
On February 5, 2008 appellant filed a timely appeal from a November 8, 2007 merit
decision of the Office of Workers’ Compensation Programs granting him a schedule award and a
January 10, 2008 nonmerit decision denying his request for reconsideration. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly granted appellant an increased schedule
award subsequent to the termination of his compensation under 5 U.S.C. § 8106(c) for refusing
suitable work; and (2) whether the Office properly denied reopening his case for further review
of the merits under 5 U.S.C. § 8128.
FACTUAL HISTORY
On August 5, 2003 appellant, then a 40-year-old modified mail processor, filed an
occupational disease claim alleging that he sustained impingement and tears of both shoulders
due to factors of his federal employment. He stopped work on October 14, 2003 and did not
return. The Office accepted his claim for bilateral carpal tunnel syndrome and left shoulder

impingement.1 Appellant underwent a left carpal tunnel release and left shoulder debridement on
December 1, 2003 and a right carpal tunnel release on May 5, 2004.
On November 17, 2004 the employing establishment offered appellant the position of
modified mail handler. By letter dated December 7, 2004, the Office notified him that the
position was suitable and provided him 30 days to accept the position or provide reasons for his
refusal. It informed appellant that if he did not accept the position or provide adequate reasons
for his refusal, his compensation would be terminated.
By decision dated January 18, 2005, the Office terminated appellant’s compensation
effective that date as he refused the appropriate light-duty offer from the employing
establishment.2 It noted that he did not respond to its December 7, 2004 letter informing him to
accept the position or provide reasons for his refusal.3
Appellant retired from the employing establishment on disability effective
January 21, 2005. On October 10, 2005 an Office medical adviser noted that the last medical
evidence addressing the extent of his permanent impairment was dated March 12, 2001, before
his surgery. On November 4, 2005 the Office referred appellant to Dr. Anthony Margherita, a
Board-certified physiatrist, for a second opinion examination. An Office medical adviser
reviewed the evidence on January 17, 2006 and found that he had 17 percent right upper
extremity impairment and 19 percent left upper extremity impairment. He determined that
appellant reached maximum medical improvement on November 5, 2004.
By decision dated February 10, 2006, the Office granted appellant a schedule award for
17 percent permanent impairment of the right upper extremity and 19 percent permanent
impairment of the left upper extremity. The period of the award ran from the date of maximum
medical improvement, November 5, 2004, until December 31, 2006.
On May 16, 2007 appellant filed a claim for an increased schedule award due to carpal
tunnel syndrome. The Office referred him to Dr. Robert W. Elkins, a Board-certified orthopedic
surgery, to determine the extent of his permanent impairment of the bilateral upper extremities.4

1

The Office previously accepted that appellant sustained a left shoulder strain and repair and upper back strain on
February 8, 1991, assigned file number xxxxxx558, a left shoulder impingement and repair on May 21, 1992,
assigned file number xxxxxx254, right groin strain on February 17, 2001, assigned file number xxxxxx944 and a
right shoulder strain and right rotator cuff tear on February 21, 2002, assigned file number xxxxxx928.
2

The Office indicated in its decision that it had terminated compensation effective January 11, 2005; however, in
its cover letter, it stated that it was terminating compensation on January 18, 2005.
3

On January 20, 2005 the Office notified appellant of its proposed suspension of his compensation for failing to
attend a medical appointment. The employing establishment questioned the proposed suspension in view of the
prior termination of his compensation for refusing suitable work. On February 3, 2005 the Office notified the
employing establishment that it could not invoke further penalties at this time.
4

The Office indicated that a conflict existed between Dr. Margherita and the Office medical adviser; however,
Dr. Margherita was an Office referral physician and thus his report could not create a conflict in opinion with the
Office medical adviser.

2

In a report dated September 28, 2007, Dr. Elkins determined that appellant reached maximum
medical improvement on November 2, 2005.
By decision dated November 8, 2007, the Office granted appellant a schedule award for
an additional three percent permanent impairment of the right upper extremity and an additional
eight percent permanent impairment of the left upper extremity. It found that he reached
maximum medical improvement on November 2, 2005. The schedule award ran from January 1
to August 29, 2007.
On December 8, 2007 appellant requested reconsideration. In a decision dated
January 10, 2008, the Office denied his request for reconsideration on the grounds that he did not
submit sufficient evidence or argument to warrant further review of the merits under section
8128 of the Federal Employees’ Compensation Act.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c) of the Act5 provides that a partially disabled employee who refuses
suitable work or neglects to work after suitable work is offered is not entitled to compensation.
Office regulations provide that in a termination under section 8106(c) the claimant has no further
entitlement to compensation under sections 8105, 8106 and 8107 of the Act which includes
payment of continuing compensation for permanent impairment of a scheduled member.6 The
Board has found that a refusal to accept suitable work constitutes a bar to receipt of a schedule
award for any impairment which may be related to the accepted employment injury.7
Although section 8106(c) of the Act serves as a bar to compensation for the period after
the termination of compensation for refusal of suitable work, if appellant reached maximum
medical improvement prior to the refusal of suitable employment, he would be entitled to
payment of any portion of a schedule award due prior to the termination of monetary
compensation benefits.8
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and left
shoulder impingement syndrome due to factors of his federal employment. By decision dated
January 18, 2005, it terminated his compensation effective that date as he refused the employing
establishment’s offer of suitable work. In a decision dated February 10, 2006, the Office granted
appellant a schedule award for a 17 percent permanent impairment of the right upper extremity
and a 19 percent permanent impairment of the left upper extremity. It determined that he
reached maximum medical improvement on November 5, 2004. The period of the award ran
from November 5, 2004 until December 31, 2006. The Board notes, however, that the Office
5

5 U.S.C. §§ 8107-8193.

6

See 20 C.F.R. § 10.517.

7

Sandra A. Sutphen, 49 ECAB 174 (1997); Stephen R. Lubin, 43 ECAB 564 (1992).

8

Id.

3

erred in finding appellant entitled to receive a schedule award after January 18, 2005, the date it
terminated his compensation for refusal of suitable work. A claimant who refuses an offer of
suitable work is not entitled to further compensation, including payment of a schedule award for
the permanent impairment of a scheduled member.9 If, however, a claimant reached maximum
medical improvement prior to the refusal of suitable employment, he is entitled to payment of
any portion of the schedule award due prior to the termination of monetary compensation
benefits. As appellant reached maximum medical improvement on November 5, 2004, he was
entitled to payment of the portion of the schedule award due prior to the termination of monetary
compensation benefits from November 5, 2004 until January 18, 2005.10
By decision dated November 8, 2007, the Office granted appellant an increased schedule
award for an additional three percent right upper extremity impairment and an additional eight
percent left upper extremity impairment. It determined that he reached maximum medical
improvement on November 2, 2005. The period of the award ran from January 1 to
August 29, 2007. The Office based its finding of maximum medical improvement on the
opinion of Dr. Elkin, the Office referral physician. There is no evidence of record suggesting an
earlier date of maximum medical improvement.11 Thus, the Board finds that the Office
improperly determined that appellant was entitled to a schedule award for an increased bilateral
upper extremity impairment. As discussed, the penalty provision of section 8106(c) of the Act
bars his claim for a schedule award for the period after the termination of compensation based on
his refusal to accept an offer of employment. The Office terminated appellant’s compensation
on January 18, 2005; consequently, he was not entitled to compensation for a schedule award
after that date.
Based on the Board’s holding that the Office’s decision of November 8, 2007 was in
error, appellant’s request for reconsideration and the January 10, 2008 denial of that request are
moot. The question of an increased schedule award, for periods subsequent to termination of
benefits should never have arisen.
CONCLUSION
The Board finds that the Office improperly granted appellant an increased schedule
award subsequent to its termination of his compensation under 5 U.S.C. § 8106.12

9

20 C.F.R. § 10.517.

10

Id.

11

It is well established that a schedule award cannot be paid until a claimant has reached maximum medical
improvement. D.R., 57 ECAB 720 (2006).
12

In view of the Board’s disposition of the merits, the issue of whether the Office properly denied his request for
reconsideration under section 8128 is moot.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 10, 2008 is moot and the decision of November 8, 2007
is reversed.
Issued: March 17, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MANN-GRANDSTAFF VETERANS
ADMINISTRATION MEDICAL CENTER,
Spokane, WA, Employer
__________________________________________

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

Docket No. 19-0858
Issued: October 9, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On March 9, 2019 appellant filed a timely appeal from a September 13, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days
have elapsed since OWCP’s last merit decision, dated March 31, 2017, to the filing of this appeal,

1

Pursuant to the Board’s Rules of Procedure, an appeal is considered filed when received by the Clerk of the
Appellate Boards. 20 C.F.R. § 501.3(f). However, when the date of receipt would result in a loss of appeal rights,
the appeal will be considered to have been filed as of the date of the U.S. Postal Service postmark or other carriers
date markings. Id. at § 501.3(f)(1). The 180th day following OWCP’s September 13, 2018 decision was
March 12, 2019. Because using March 14, 2019, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is March 9, 2019, rendering the appeal timely filed. Id.

pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case. 3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 16, 2017 appellant, then a 49-year-old dental assistant, filed an occupational
disease claim (Form CA-2) alleging that she sustained injury due to factors of her federal
employment including exposure to chemical fumes from work being performed on the employing
establishment roof. She indicated that she first became aware of her condition and its relationship
to factors of her federal employment, on February 14, 2017. Appellant did not stop work.
In a development letter dated February 28, 2017, OWCP informed appellant of the
deficiencies of her claim, requested additional factual and medical evidence, and provided a
questionnaire for her completion. Appellant was afforded 30 days to submit the necessary
evidence.
In medical reports dated February 14 and 21, 2017, Dr. Janell Lynn Simpkins, a Boardcertified internist, and Dr. Christopher Coons, an osteopathic physician Board-certified in internal
medicine, noted an assessment of environmental toxin exposure.
In duty status reports (Form CA-17) dated February 14 and 21, 2017, Dr. Coons did not
indicate a diagnosis, but rather noted “respiratory problems” in describing appellant’s medical
condition.
By decision dated March 31, 2017, OWCP denied appellant’s claim finding that she had
not submitted medical evidence containing a valid medical diagnosis in connection with the
injury.4
In a report dated March 20, 2018, John Loranger, a physician assistant, examined appellant
and noted an impression of allergic reaction to chemical substance.
In an unsigned report dated March 22, 2018, Dr. Stephanie Walker Stoke, Board-certified
in occupational medicine, indicated that appellant had been exposed to chemicals for about four
2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence on appeal. 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.
4

On March 22, 2018 appellant filed a duplicate notice Form CA-2 alleging that she sustained chemical sensitivity
on February 14, 2017 due to work being performed on the employing establishment roof.

2

years and she could not tolerate being at work anymore. She related that appellant had sensitivity
to nitrous oxide, and experienced symptoms including tingling in her sinuses, numbness in her
face, plugged-up ears, gravelly voice, tight airway, sharp chest pain, foggy thinking, and weakness
in her hands. Dr. Stoke noted an assessment of occupational exposure to chemicals, and referred
her to an allergist. She then completed a Form CA-17 relating the same assessment.
On May 24, 2018 appellant requested reconsideration of OWCP’s March 31, 2017
decision.
By decision dated September 13, 2018, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a). 6 One such limitation provides that an application
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.7 Timeliness is determined by the document receipt date, the received date in
OWCP’s integrated Federal Employees’ Compensation System (iFECS). 8 The Board has found
that the imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted OWCP under 5 U.S.C. § 8128(a).9
Section 10.607(b) provides 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 show that OWCP’s decision was, on its face,
erroneous.10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP. 11 The evidence must be positive, precise, and explicit and
must be manifest on its face that OWCP committed an error. 12 Evidence that does not raise a
5

D.Y., Docket No. 19-0565 (issued August 13, 2019); see Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
6

D.V., Docket No. 19-0588 (issued August 5, 2019); see Annette Louise, 54 ECAB 783, 789-90 (2003).

7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

9

D.Y., supra note 5; F.R., Docket No. 09-0575 (issued January 4, 2010); see Jesus D. Sanchez, supra note 5.

10

20 C.F.R. § 10.607(b).

11

E.R., Docket No. 18-0667 (issued August 1, 2019); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S.,
Docket No. 08-0440 (issued March 16, 2009).
12
E.R., id.; G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009);
Leon D. Faidley, supra note 5.

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substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. 13 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. 14 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. 15
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP ’s decision.16 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.17
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations18 and procedures19 establish a one-year time limitation for requesting
reconsideration, which begins on the date of the last OWCP merit decision. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues. 20
The most recent merit decision was OWCP’s March 31, 2017 decision which found that the
evidence of record was insufficient to establish a medical diagnosis in connection with appellant’s
claimed injury. As appellant’s request for reconsideration was not received by OWCP until
May 24, 2018, more than one year after the March 31, 2017 decision, the Board finds that it was
untimely filed. Because her request was untimely, she must demonstrate clear evidence of error
on the part of OWCP in having denied her occupational disease claim.
The Board further finds that appellant has failed to demonstrate clear evidence of error on
the part of OWCP in its last merit decision.

13

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010).

14

A.C., Docket No. 18-1730 (issued July 23, 2019); see Leona N. Travis, 43 ECAB 227, 241 (1991).

15

A.C., id.; see Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

16

D.Y., supra note 5; see Veletta C. Coleman, 48 ECAB 367, 370 (1997).

17

E.R., supra note 11; see Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

18

W.R., Docket No. 19-0438 (issued July 5, 2019); S.C., Docket No. 18-0126 (issued May 14, 2019); J.S., Docket
No. 16-1240 (issued December 1, 2016).
19

W.R., id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(February 2016); see S.C., id.; Veletta C. Coleman, supra note 16.
20

W.R., id.; 20 C.F.R. § 10.607(b); see S.C., supra note 18. Debra McDavid, 57 ECAB 149 (2005).

4

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which 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 demonstrate clear
evidence of error.21 In her request for reconsideration, appellant submitted additional medical
evidence, however, these documents are insufficient to show that OWCP’s March 31, 2017
decision was made in error when it was issued.
The report from Mr. Loranger related that appellant had developed an allergic reaction to
a chemical substance; however, this report does not demonstrate clear error in the March 31, 2017
merit decision because the reports of nonphysicians, including physician assistants do not
constitute probative medical evidence under FECA. 22
Dr. Stoke evaluated appellant on March 22, 2018, and provided an assessment of
occupational exposure to chemicals. This report did not contain the type of positive, precise, and
explicit evidence, which manifests on its face, that OWCP committed an error in its March 31,
2017 decision.23 The Board has previously explained that even evidence such as a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development, does not demonstrate clear evidence
of error.24 The Board finds that the March 22, 2018 report from Dr. Stoke does not rise to the level
of clear evidence of error.25
Clear evidence of error is intended to represent a difficult standard. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the part
of OWCP.26 As appellant has not submitted such evidence, the Board finds that she has not
demonstrated clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

21

S.C., supra note 18; J.S., supra note 18; Federal (FECA) Procedure Manual, supra note 19 at Chapter 2.1602.5(a)
(February 2016).
22

D.Y., supra note 5.

23

R.O., Docket No. 18-1687 (issued March 26, 2019); M.L., supra note 13; see Fidel E. Perez, 48 ECAB 663,
665 (1997).
24

T.S., Docket No. 19-0056 (issued July 1, 2019).

25

Id.

26

Supra note 16.

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ORDER
IT IS HEREBY ORDERED THAT the September 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6