United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, NORTH HOUSTON
PROCESSING & DISTRIBUTION CENTER,
Houston, TX, Employer
__________________________________________

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

Docket No. 09-1876
Issued: June 16, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 14, 20091 appellant filed a timely appeal from a January 16, 2009 decision of the
Office of Workers’ Compensation Programs terminating her monetary compensation benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether the Office properly terminated appellant’s monetary compensation
benefits effective November 27, 2004 under section 8106(c) of the Federal Employees’
Compensation Act on the grounds that she neglected an offer of suitable work.
On appeal, appellant contends that her physicians did not release her to return to work.

1

Appellant’s request for appeal was postmarked July 14, 2009.

FACTUAL HISTORY
The Office accepted that on May 6, 2004 appellant, then a 42-year-old mail handler,
sustained a right shoulder sprain/strain and cervical sprain/strain when struck by a falling postal
container shelf. Appellant stopped work on May 8, 2004 and did not return. She received wageloss compensation on the daily rolls effective June 21, 2004 and periodic rolls effective
July 11, 2004. On July 13, 2004 the Office referred appellant to a medical management nurse.
Dr. Nolon W. Jones, an attending Board-certified family practitioner, held appellant off
work from May 25 to July 27, 2004 due to the accepted injuries.2 Dr. Andres H. Keichian, an
attending neurologist, provided June 21 and July 22, 2004 reports diagnosing cervical
spondylosis and status post cervical strain.
In a July 16, 2004 report, Dr. Sherwin J. Siff, an attending Board-certified orthopedic
surgeon, diagnosed rotator cuff tendinitis and subacromial bursitis. He released appellant to
return to work from July 19, 2004 onward with no heavy lifting. In an August 30, 2004 report,
Dr. Siff found her able to work eight hours a day with restrictions against lifting more than
25 pounds, excessive reaching or reaching above the shoulder.
Dr. Carlos F. Hernandez, an attending Board-certified psychiatrist, held appellant off
work from August 13 to 23, 2004.
On September 2, 2004 the employing establishment offered appellant a full-time
modified-duty assignment as a modified flat sorter, opening containers and tubs for three hours,
loading ergo-carts for three hours, separating “direct tub under 25 pounds” for three hours,
standing and walking. The position was available that day.
In a September 17, 2004 email, the medical management nurse noted that appellant had
signed the job offer but not returned it to the employing establishment.
In a September 20, 2004 letter, the Office advised appellant that the offered modified flat
sorter position was suitable work within Dr. Siff’s August 30, 2004 restrictions. It explained the
Act’s penalty provisions under 5 U.S.C. § 8106(c)(2) for neglecting or refusing an offer of
suitable work, including termination of wage loss and schedule award compensation. The Office
afforded appellant 30 days to report for work or submit valid reasons for neglecting to work.
Appellant accepted the job offer on September 27, 2004.
medical evidence.

She submitted additional

In a May 17, 2004 report, Dr. Gerard T. Gabel, an attending orthopedist, limited lifting to
25 pounds. Dr. Hernandez held appellant off work on September 15 and 16, 2004 and released
her to work as of September 20, 2004. Dr. Castillo, an attending physician, held appellant off
2

A May 13, 2004 magnetic resonance imaging (MRI) scan showed right subacromial-subdeltoid bursitis,
moderate supraspinatus tendinisis and moderate degenerative changes of the acromioclavicular joint. A July 15,
2004 cervical MRI scan showed mild cervical degenerative disc disease with posterior bulges from C3 through C6
and slight foraminal encroachment.

2

work from September 10 to 13, 2004 “due to medical reasons.” Dr. Siff provided reports from
August 30 to October 15, 2004, finding her able to work eight hours a day with pushing, pulling
and lifting restricted to 25 pounds and limited overhead work. Dr. Jones held appellant off work
from October 4 to 31, 2004 due to shortness of breath and an anxiety disorder.
By decision dated November 4, 2004, the Office terminated appellant’s monetary
compensation benefits effective November 27, 2004 under section 8106(c) of the Act, on the
grounds she refused an offer of suitable work. It found that she received proper notice that the
offered position was suitable work. The Office further found that appellant did not provide good
cause for failing to report for duty, although the offered position remained open and available to
her. It noted that the position was within the restrictions prescribed by Dr. Siff on
August 30, 2004.
In a November 13, 2004 letter, appellant requested reconsideration. She contended that
she “never refused the offer” as she accepted the job on September 27, 2004. Appellant
submitted a December 14, 2004 report, from Dr. L.S. Slaughter, an attending Board-certified
family practitioner, finding her totally disabled for work from May 7, 2004 onward due to
occupational low back and neck injuries.
In a December 23, 2004 letter, the employing establishment acknowledged that appellant
accepted the September 2, 2004 job offer on September 27, 2004. However, appellant had not
yet returned to work.
By decision dated February 27, 2005, the Office denied modification of the November 4,
2004 decision. It found that appellant neglected suitable work as she failed to report for duty
after accepting the offered position.
In a May 18, 2005 letter, appellant requested reconsideration. She submitted additional
evidence.3
In a February 14, 2005 report, Dr. J.L. Paterson, a licensed clinical psychologist,
diagnosed major depression with psychotic features and panic disorder with agoraphobia.
Dr. Cal K. Cohn, an attending psychiatrist, found appellant totally disabled for work as of
October 17, 2006.4
Dr. Slaughter held appellant off work from April 6, 2005 to December 10, 2007 except
for recommending a brief trial of light duty in February 2006. He noted that she was assaulted
“by a postal employee” in October 2004 and developed major depression and post-traumatic
stress disorder.
In January 12, 2006 reports, Dr. Gabel found that appellant attained maximum medical
improvement. He opined that she had a l3 percent impairment of the right wrist according to the
3

Appellant also submitted documents relating to a bankruptcy discharge, with the final decree entered on
May 17, 2005.
4

The Board notes that there is no claim of record for an emotional condition.

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American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001).5 Dr. Gabel released appellant to return to work as of September 7, 2006.
By decision dated January 16, 2009, the Office denied modification of the February 27,
2005 decision. It found that the evidence submitted on reconsideration did not demonstrate a
work-related disability in September 2004 at the time appellant accepted the modified job offer.
The Office further found that the termination remained justified as she neglected suitable work.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.6 In this case, it terminated appellant’s compensation
under section 8106(c)(2) of the Act, which provides that a partially disabled employee who
refuses or neglects to work after suitable work is offered to, procured by or secured for the
employee is not entitled to compensation.”7 To justify termination of compensation, the Office
must show that the work offered was suitable and must inform appellant of the consequences of
refusal to accept such employment.8 Section 8106(c) will be narrowly construed as it serves as a
penalty provision, which may bar an employee’s entitlement to compensation based on a refusal
to accept a suitable offer of employment.9
Section 10.517(a) of the Act’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.10 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.11
Before terminating compensation, the Office must review the employee’s proffered
reasons for refusing or neglecting to work.12 If the employee presents such reasons and the
Office finds them unreasonable it will offer the employee an additional 15 days to accept the job
without penalty. In cases where compensation is terminated pursuant to section 8106(c), the
essential requirements of due process, notice and an opportunity to respond apply not only where

5

The Board notes that there is no claim of record for a schedule award.

6

Linda D. Guerrero, 54 ECAB 556 (2003); Mohamed Yunis, 42 ECAB 325, 334 (1991).

7

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

8

Ronald M. Jones, 52 ECAB 190 (2000); Arthur C. Reck, 47 ECAB 339 (1995).

9

Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

10

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 8.

11

Id. at § 10.516.

12

C.G., 61 ECAB ___ (Docket No. 09-247, issued January 26, 2010); see Maggie L. Moore, 42 ECAB 484
(1991), reaff’d on recon., 43 ECAB 818 (1992).

4

an employee refuses suitable work, but also apply where an employee neglects or abandons
suitable work.13
ANALYSIS
The Office terminated appellant’s monetary compensation benefits effective
November 27, 2004 on the grounds that she refused a September 2, 2004 offer of suitable work.
It found that the weight of the medical evidence established that the position was within
appellant’s physical capabilities. This evidence included August 30, 2004 work restrictions by
Dr. Siff, an attending Board-certified orthopedic surgeon.
In a September 20, 2004 letter, the Office advised appellant of the Act’s penalty
provisions for refusing or neglecting suitable work and afforded her 30 days to report for duty or
provide valid reasons for refusal. Appellant accepted the job offer on September 27, 2004 but
provided new reports from Dr. Jones, an attending Board-certified family practitioner, and
Dr. Hernandez, an attending Board-certified psychiatrist, holding her off work from
September 10 to 13 and October 4 to 31, 2004. On appeal, appellant asserts that this evidence
established that she was not medically released to return to work. However, without advising her
of the sufficiency of this new evidence or offering her an additional 15 days to report for work,
the Office issued its November 4, 2004 decision terminating her wage-loss compensation
effective November 27, 2004.
The Board finds that the Office failed to comply with its own procedural requirements in
terminating appellant’s benefits under section 8106. It provided only a 30-day notice on
September 20, 2004. Although appellant submitted new evidence after September 20, 2004, the
Office terminated her wage-loss benefits effective November 27, 2004 without advising her that
her reasons were unacceptable or that she had 15 days to report for duty.14 The Office did not
comply with the proper notice requirements prior to termination.
For this reason, the Office improperly terminated appellant’s compensation benefits
effective November 27, 2004 on the grounds that she neglected suitable work. Because the
termination was improper, it must pay appellant all compensation due and owing to her from
November 27, 2004 onward. The case will be returned to the Office for payment of appropriate
compensation retroactive to November 27, 2004.
CONCLUSION
The Board finds that the Office did not meet its burden of poof to establish that appellant
neglected suitable work.

13

C.G., supra note 12. See Mary A. Howard, 45 ECAB 646 (1994).

14

C.G., supra note 12. See Kenneth R. Love, 50 ECAB 193 (1998).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 16, 2009 is reversed.
Issued: June 16, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
CENTRAL ALABAMA HCS-EAST CAMPUS,
Tuskegee, AL, Employer
__________________________________________

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

Docket No. 09-917
Issued: October 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On February 25, 2009 appellant filed a timely appeal from a January 23, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of appellant’s claim.
ISSUE
The issue is whether appellant satisfied her burden of proof to establish that she sustained
an injury in the performance of duty on October 7, 2008 causally related to her federal
employment.1

1

Appellant filed her claim as an occupational disease claim (Form CA-2). Because her condition resulted from
events occurring during one work shift, not over a period of time, her claim was adjudicated as a traumatic injury.

FACTUAL HISTORY
On November 3, 2008 appellant, a 43-year-old nursing assistant, filed an occupational
disease claim (Form CA-2) alleging that on October 7, 2008 while riding in an ambulance that
was transporting a veteran she experienced shortness of breath, muscle aches and weakness.
Appellant submitted results from diagnostic tests, notes and reports diagnosing her with
lower left lobe pneumonia, flu, anemia and mild thrombocytopenia.
In a December 2, 2008 note, appellant described the events of October 7, 2008 and
information pertaining to her health and medical treatment.
By decision dated January 23, 2008, the Office denied appellant’s claim because the
evidence of record did not demonstrate that the claimed medical condition was caused by the
established employment-related incident. It noted that it had converted appellant’s claim to a
traumatic injury claim (Form CA-1) because she alleged her condition was caused by an
October 7, 2008 incident rather than over a period of time.
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.2 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.4

2

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

3

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354,
356-57 (1989).
4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

2

ANALYSIS
Appellant alleges that an October 7, 2008 employment incident caused pneumonia and
other medical conditions. The Office has accepted that the incident occurred as alleged.
Appellant’s burden is to establish, through production of probative, rationalized medical
evidence, that the October 7, 2008 incident caused her conditions. Causal relationship is a
medical issue that can only be proven by rationalized medical opinion evidence. The Board
finds the evidence of record insufficient to satisfy appellant’s burden of proof.
The evidence of record consisted of results from diagnostic tests, notes and reports
diagnosing lower left lobe pneumonia, flu, anemia, and mild thrombocytopenia. But this
evidence is of no probative medical value on the issue of causal relationship as it lacks an
opinion explaining how the identified October 7, 2008 employment incident caused the
conditions diagnosed.5 As such, these reports are insufficient to satisfy appellant’s burden of
proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.6 The Board has held that the fact that a condition manifests itself or
worsens during a period of employment7 or that work activities produce symptoms revelatory of
an underlying condition8 does not raise an inference of causal relationship between a claimed
condition and an employment incident.9
The Board finds that appellant has not satisfied her burden of proof to establish that she
sustained an injury in the performance of duty on October 7, 2008 causally related to her
employment.
CONCLUSION
The Board finds that appellant has not satisfied her burden of proof to establish that she
sustained an injury in the performance of duty on October 7, 2008 causally related to her
employment.

5

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value). See also, Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB
457 (2001).
6

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

7

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).
8

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

9

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).

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ORDER
IT IS HEREBY ORDERED THAT the January 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0302
Issued: January 28, 2022

Case Submitted on the Record

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

On December 20, 2021 appellant filed an appeal from a March 11, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0302.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180 th day following the March 11, 2021 decision was September 7, 2021. As appellant
did not file an appeal with the Board until December 20, 2021, more than 180 days after the
March 11, 2021 OWCP decision, the Board finds that the appeal docketed as No. 22-0302 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0302 is dismissed.
Issued: January 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL OFFICE, KELSO POST OFFICE,
Kelso, WA, Employer
__________________________________________

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

Docket No. 08-1863
Issued: January 27, 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 June 23, 2008 appellant, through her representative, filed a timely appeal from a
May 27, 2008 decision of the Office of Workers’ Compensation Programs’ hearing
representative and a December 27, 2007 decision of the Office denying her claim for fact of
injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the appeal.
ISSUE
The issue is whether appellant established that she sustained a shoulder injury in the
performance of duty, causally related to factors of her federal employment.
FACTUAL HISTORY
On November 20, 2007 appellant, then a 46-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained a torn right shoulder rotator cuff.
Appellant worked as a carrier for eight years and had a heavy route with duties including casing,
lifting, opening and closing of mailboxes. Appellant also alleged that she had to reach overhead

to pull down mail at taller cases. She stopped working on November 24, 2006 due to
employment-related lateral epicondylitis of her right elbow and has not returned.
Appellant initially attributed her neck and shoulder pain to her right elbow injury and did
not realize her shoulder was injured until July 12, 2007, when she was referred by the Office to
Dr. Raymond E. Berg, a Board-certified orthopedic surgeon, for a second opinion examination of
her elbow injury. She submitted a two-page portion from the medical report of this examination
in which Dr. Berg mentioned acute tenderness in appellant’s right shoulder, which had not been
addressed by prior examiners or treating physicians.
A September 7, 2007 magnetic resonance image (MRI) scan of appellant’s right shoulder
revealed abnormalities of the supraspinatus tendon consistent with a partial tear.
On November 9, 2007 Dr. David M. Black, a Board-certified orthopedic and hand
surgeon, examined appellant’s right elbow and shoulder. Dr. Black reviewed appellant’s history
of impingement syndrome of the right shoulder and that in recent months she had symptoms
consistent with right shoulder bursitis, which was unsuccessfully treated with injections. He
referenced appellant’s September 7, 2007 MRI scans, which suggested a partial tear of the
supraspinatus tendon on its undersurface. Physical examination of appellant’s right shoulder
revealed good range of motion with discomfort at extremes and tenderness and crepitus over the
subacromial bursa area with positive signs of impingement. Dr. Black diagnosed impingement
syndrome of the right shoulder, reporting a concern that the condition could evolve into a full
thickness rotator cuff tear requiring surgery.
In a letter dated November 21, 2007, the Office notified appellant of the deficiencies in
her claim and requested a medical report from a treating physician.
Appellant subsequently submitted a statement dated December 12, 2007. She alleged
that her work duties required her to stand at her case for about two and a half hours a day while
putting flats and letters into the slots addressed to the 400 plus customers on her route. This task
required overhead reaching as the case was about six feet tall and she was only five feet one inch
tall. Appellant also alleged that she was required to pick up packages for delivery.
In a December 27, 2007 decision, the Office denied appellant’s claim on the grounds that
medical evidence did not establish that her right shoulder injury was related to her employment
duties.
On January 7, 2008 appellant, through her representative, requested a telephonic hearing
by an Office hearing representative which took place on March 12, 2008. She testified that she
had not sustained a prior shoulder injury and that she did not engage in any activities where she
extensively used her arm.
In a decision dated May 27, 2008, the hearing representative affirmed the December 27,
2007 decision, finding that appellant did not provide sufficient medical evidence relating her
shoulder injury to her employment.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,2
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.3 To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.5
ANALYSIS
The issue is whether appellant met her burden of proof in establishing that she sustained a
right shoulder injury arising out of her work duties, including casing, lifting, overhead reaching
and opening and closing mailboxes. The Board finds that she did not submit sufficient medical
evidence to establish her claim.
In order to meet her burden of proof in establishing causation, appellant is required to
provide rationalized medical opinion relating her right shoulder injury to her employment. She
submitted a July 12, 2007 medical report from Dr. Berg, a September 7, 2007 MRI scan report
and a November 9, 2007 medical report from Dr. Black. None of this evidence contains medical
rationale explaining how her shoulder condition was caused or contributed to by her work duties.

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
4

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

3

The September 7, 2007 MRI scan report of appellant’s right shoulder revealed
abnormalities consistent with a partial tear of the supraspinatus tendon. However, as the purpose
of the report is to establish a diagnosis, it does not address the cause of appellant’s condition.
Thus, it is not probative on the issue of causation.6
Appellant submitted two pages from a July 12, 2007 report of Dr. Berg, who made a brief
reference to a finding of tenderness in her right shoulder, which had not been previously
addressed. The Board notes that the physician’s report submitted is incomplete and does not
provide a full medical history or detail findings on examination of the right shoulder. The mere
mention of right shoulder pain or tenderness does not constitute probative medical opinion on
causal relationship, which was not addressed by Dr. Berg. He did not describe the cause of her
shoulder condition or explain how it was related to her employment.
In a November 9, 2007 medical report, Dr. Black did not offer any opinion as to the cause
of appellant’s right shoulder condition. He detailed appellant’s history of shoulder impingement
and the results of a physical examination, finding that appellant suffered from impingement
syndrome of the right shoulder with symptoms of shoulder bursitis. However, Dr. Black did not
address whether her right shoulder condition was work related.7
The Board finds that appellant did not meet her burden of proof that she sustained a right
shoulder injury in the performance of duty because she failed to provide medical evidence
containing a rationalized explanation of how her shoulder condition was related to her
employment factors.
CONCLUSION
The Board finds that appellant did not establish that she sustained a shoulder injury in the
performance of duty, causally related to factors of her federal employment.

6

See Robert Broome, 55 ECAB 339 (2004); Linda I. Sprague, 48 ECAB 386 (1997).

7

See Id.

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ORDER
IT IS HEREBY ORDERED THAT the December 27, 2007 decision of the Office of
Workers’ Compensation Programs and the May 27, 2008 decision of the hearing representative
are affirmed.
Issued: January 27, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, DELAWARE
PROCESSING & DISTRIBUTION CENTER,
Wilmington, DE, Employer
__________________________________________

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

Docket No. 07-1612
Issued: November 13, 2007

Case Submitted on the Record

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

JURISDICTION
On May 23, 2007 appellant filed a timely appeal from a November 2, 2006 decision of
the Office of Workers’ Compensation Programs that denied her request for reconsideration and
an October 16, 2006 decision that denied her occupational disease claim. 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 are: (1) whether appellant met her burden of proof in establishing that she
developed an occupational disease in the performance of duty; and (2) whether the Office
properly denied appellant’s reconsideration request without conducting further merit review.

FACTUAL HISTORY
On March 14, 2006 appellant, then a 40-year-old dispatch clerk, filed an occupational
disease claim alleging that she developed left arm pain in the performance of duty.1 She did not
stop work.
In support of her claim, appellant provided a physical therapy prescription form from
Dr. David Sowa, a Board-certified orthopedic surgeon. In a March 23, 2006 duty status report,
Dr. Sowa noted findings of cervical radiculopathy and listed appellant’s work restrictions. In a
March 23, 2006 examination report, he indicated that appellant had “cervical radicular
complaints in the bilateral upper extremities,” which she related to “overuse activities at work.”
On August 7, 2006 the Office advised appellant of the evidence needed to establish her
claim.
On September 19, 2006 Dr. Peter F. Townsend, a Board-certified orthopedic surgeon,
performed a physical examination. He noted appellant’s complaints of right wrist pain with
radiation to the shoulder, pain in the shoulder and paresthesias in her long and ring fingers,
“which are exacerbated by her activities at work.” Dr. Townsend diagnosed shoulder bursitis
and impingement syndrome. In an accompanying note, he indicated that appellant’s job as a
mail processor required her to throw bundles of magazines. Dr. Townsend prescribed an
electromyogram (EMG) to rule out carpal tunnel syndrome as well as physical therapy.
Appellant provided physical therapy notes.
By decision dated October 16, 2006, the Office denied appellant’s occupational disease
claim, finding that she had not met her burden of proof in establishing a causal relationship
between her diagnosed condition and factors of her employment.
Appellant requested reconsideration on October 25, 2006. She provided additional
copies of Dr. Townsend’s physical therapy prescription notes and notes from her physical
therapist.
By decision dated November 2, 2006, the Office denied appellant’s request for
reconsideration without conducting a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disabilities and/or specific
1

Appellant actually filed a claim for recurrence of disability. However, the Office determined that the matter
would be more properly developed as a new occupational disease claim. Appellant’s previous claim involved a rash
to the arm and was closed in 2000.
2

5 U.S.C. §§ 8101-8193.

2

conditions 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
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.5 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, appellant must submit: “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the 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 factors identified by the claimant.”6
An award of compensation may not be based on surmise, conjecture, speculation or upon
a claimant’s own belief that there is a causal relationship between his or her claimed injury and
his or her employment.7 To establish a causal relationship, a claimant must submit a physician’s
report, in which the physician reviews the employment factors identified by appellant as causing
her condition and, taking these factors into consideration as well as findings upon examination of
appellant and her medical history, states whether the employment injury caused or aggravated
her diagnosed conditions and presents medical rationale in support of his or her opinion.8
ANALYSIS -- ISSUE 1
The record reflects that appellant performed certain repetitive activities utilizing the
upper extremities in her position as a dispatch clerk. The Board finds that appellant has not met
her burden of proof in establishing that factors of her employment caused her cervical condition.9
Appellant submitted a March 23, 2006 duty status report and examination notes from
Dr. Sowa. In his duty status report, Dr. Sowa did not provide a specific opinion on causal
relationship. The Board has held that a medical report that does not include an opinion on causal
3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

6

Michael R. Shaffer, 55 ECAB 386, 389 (2004), citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 4.
7

Donald W. Long, 41 ECAB 142 (1989).

8

Id.

9

After issuance of the Office’s November 2, 2006 decision and also on appeal, appellant submitted additional
medical evidence. The Board, however, notes that it cannot consider this evidence for the first time on appeal
because the Office did not consider this evidence in reaching a final decision. The Board’s review is limited to the
evidence in the case record at the time the Office made its final decision. 20 C.F.R. § 501.2(c).

3

relationship is not probative on that issue.10 In his examination notes, Dr. Sowa stated that
appellant related her symptoms to overuse activities performed on the job. However, he did not
provide his own reasoned opinion on causal relationship based on physical examination and
diagnostic testing but instead appears to have merely repeated what appellant related.11
Accordingly, the Board finds that Dr. Sowa’s reports do not establish a causal relationship
between appellant’s job duties and her diagnosed condition.
Appellant also provided a September 19, 2006 report and several prescription forms from
Dr. Townsend. The prescriptions for an EMG and physical therapy did not include an opinion
on causal relationship and consequently are of no probative value on that issue.12 In his
September 19, 2006 report, Dr. Townsend diagnosed shoulder bursitis and impingement
syndrome, which he stated was exacerbated by appellant’s work activities. Although he did
provide support for causal relationship, the Board finds that his opinion is insufficient to
establish that appellant’s job duties caused her diagnosed condition because he did not support
his opinion with rationale or a detailed explanation of how appellant’s job caused her shoulder
bursitis and impingement. Dr. Townsend did not enumerate which specific job activities
exacerbated appellant’s condition, explain why they exacerbated her condition or provide
reasoning to support his conclusions. In his accompanying note, he indicated that appellant’s job
duties included throwing bundles of magazines. However, Dr. Townsend did not explain how
this particular job duty caused appellant’s diagnosed shoulder bursitis and impingement.
Therefore, the Board finds that his September 19, 2006 report lacks sufficient rationale to
support her occupational disease claim.
The Board notes that appellant also submitted physical therapy notes. However, a
physical therapist is not a physician within the Act’s definition13 and, as causal relationship is a
medical question that can generally be decided only by competent medical evidence,14 the
physical therapy notes are of no probative value in establishing the claim.
Consequently, appellant has not met her burden of proof in establishing her claim.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128 of the Act, the Office has discretion to grant a claimant’s request for
reconsideration and reopen a case for merit review. Section 10.606(b)(2) of the implementing

10

See, e.g., Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (medical evidence which does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
11

See Laurie S. Swanson, 53 ECAB 517 (2002) (a physician’s statement regarding a claimant’s ability to work
consisting primarily of a repetition of the claimant’s complaints is not a basis for payment of compensation).
12

See supra note 10.

13

See Jennifer L. Sharp, 48 ECAB 209 (1996); Thomas R. Horsfall, 48 ECAB 180 (1996); Barbara J. Williams,
40 ECAB 649 (1988).
14

Steven S. Saleh, 55 ECAB 169 (2003).

4

federal regulations provides guidance for the Office in using this discretion.15 The regulations
provide that the Office should grant a claimant merit review when the claimant’s request for
reconsideration and all documents in support thereof:
“(i) Shows that [the 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 [the Office].”16
Section 10.608(b) provides that, when an application for review of the merits of a claim
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.17 When reviewing an Office decision denying a merit review, the function of the
Board is to determine whether the Office properly applied the standards set forth at section
10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.18
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s claim without conducting a
merit review because appellant failed to meet any of the above-listed criteria. With her
reconsideration request, appellant did not present any additional information; she did not show
that the Office erroneously applied or interpreted a specific point of law, nor did she advance a
new and relevant legal argument.
In support of her request, appellant provided an additional copy of Dr. Townsend’s
September 19, 2006 physical therapy prescription and of her physical therapy notes. As this
evidence had previously been received and considered by the Office, it was not new evidence
and did not constitute a basis for reopening the claim.19 Thus, the Office properly denied
appellant’s reconsideration request.

15

20 C.F.R. § 10.606(b)(2).

16

Id.

17

Id. at § 10.608(b).

18

Annette Louise, 54 ECAB 783 (2003).

19

See Eugene F. Butler, 36 ECAB 393, 398 (1984) (where the Board held that material which is repetitious or
duplicative of that already in the case record is of no evidentiary value in establishing a claim and does not
constitute a basis for reopening a case).

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
developed an occupational disease in the performance of duty and that the Office properly denied
her request for reconsideration without conducting a merit review.
ORDER
IT IS HEREBY ORDERED THAT the November 2 and October 16, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: November 13, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Whitehall, AR, Employer
__________________________________________

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

Docket No. 20-1509
Issued: May 25, 2021

Case Submitted on the Record

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

JURISDICTION
On August 10, 2020 appellant filed a timely appeal from March 13 and June 18, 2020 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted December 21, 2019 employment incident.
FACTUAL HISTORY
On February 7, 2020 appellant, then a 66-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 21, 2019 he sustained an injury to his left upper leg
when it caught on the metal brace of a right-hand vehicle while in the performance of duty. On
1

5 U.S.C. § 8101 et seq.

the reverse side of the claim form, J.D., an employing establishment supervisor, checked a box
marked “Yes” indicating that appellant’s injury was caused by his own willful misconduct as he
had been injured due to his inattention to the brake handle. He further noted that appellant had not
notified him of the injury at any point prior to February 7, 2020. Appellant stopped work on the
date of injury and returned to work on January 20, 2020.
In a February 11, 2020 development letter, OWCP informed appellant that it had received
no evidence in support of his traumatic injury claim. It advised him of the type of factual and
medical evidence required and provided a questionnaire for his completion. OWCP afforded him
30 days to submit the necessary evidence. In the same letter, it also informed the employing
establishment that, if appellant was treated at an employing establishment medical facility for the
alleged injury, it must provide treatment notes.
OWCP subsequently received a January 21, 2020 note from Dr. Alan Pollard, a Boardcertified orthopedic surgeon, who noted that appellant had been off work since December 26, 2019
due to symptoms from a previous femur fracture. Dr. Pollard released appellant to work without
restrictions as of January 20, 2020.
By decision dated March 13, 2020, OWCP accepted that the December 21, 2019
employment incident occurred, as alleged. However, it denied appellant’s traumatic injury claim,
finding that he had not submitted evidence containing a medical diagnosis in connection with the
accepted incident. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
On March 30, 2020 appellant requested reconsideration of OWCP’s March 13, 2020
decision.
OWCP received additional evidence. In a December 26, 2019 report, Dr. Pollard noted
that appellant was seen in follow up for a femur fracture. Appellant provided an interim history
of feeling something pop in the anterior aspect of the left thigh while exiting his work vehicle on
December 21, 2019. He indicated that he experienced pain and swelling and, although the
swelling subsided by December 24, 2019, the pain was ongoing. Dr. Pollard performed a physical
examination and noted mild tenderness to palpation over the anterior aspect of the left thigh over
the prior femur fracture site. He reviewed radiographs of the left femur, which revealed a healed
left femur fracture and no new injury. Dr. Pollard’s impression was a stable left femur fracture
status post intermedullary nailing on November 30, 2018 with a recent episode of pain and
swelling in the left thigh. He opined that this might have been secondary to muscle strain over the
prominent bone at the femur fracture site, or perhaps could be secondary to release of scar tissue
around the femur fracture site. Dr. Pollard recommended appellant remain out of work for one
additional week.
By decision dated June 18, 2020, OWCP denied modification of its March 13, 2020
decision, finding that appellant had not submitted medical evidence sufficient to establish a
diagnosed medical condition causally related to his accepted employment incident.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.4 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.7 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.8
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,

2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted December 21, 2019 employment incident.
In support of his claim, appellant submitted a report of Dr. Pollard dated December 26,
2019, which primarily addressed follow-up care for a left femur fracture, which had occurred prior
to the employment incident, and for which he had undergone intermedullary nailing on
November 30, 2018. Dr. Pollard noted a recent episode of pain and swelling after appellant felt a
pop in the anterior left thigh while exiting his work vehicle on December 21, 2019. This Board
has held that pain is a description of a symptom, not a diagnosis of a medical condition.10
Dr. Pollard further opined that the pain and swelling “might have” been secondary to muscle strain
over the prominent bone at the femur fracture site, or “perhaps could be” secondary to release of
scar tissue around the femur fracture site. The Board has held that a medical report lacking a firm
diagnosis and a rationalized medical opinion that the medical condition is causally related to the
employment incident is of no probative value.11 Therefore, Dr. Pollard’s report is insufficient to
establish appellant’s claim.
Similarly, in his subsequent note dated January 21, 2020, Dr. Pollard indicated that
appellant had been off work due to symptoms from a previous femur fracture. As the Board has
held, a medical report which does not provide a firm diagnosis and render an opinion on causal
relationship is of no probative value and, thus, is insufficient to establish the claim.12 Additionally,
the Board has held that a well-rationalized opinion is particularly warranted when there is a history
of a preexisting condition, as in this case.13 Thus, Dr. Pollard’s January 21, 2020 report is also
insufficient to meet appellant’s burden of proof.
As appellant has not submitted rationalized medical evidence establishing causal
relationship between a diagnosed medical condition and the accepted December 21, 2019
employment incident, the Board finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.15.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); J.L.,
Docket No. 20-0717 (issued October 15, 2020).
10
See K.S., Docket No. 19-1433 (issued April 26, 2021); S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y.,
Docket No. 20-0112 (issued June 25, 2020).
11

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

12

T.D., Docket No. 19-1779 (issued March 9, 2021).

13

Supra note 9.

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted December 21, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 25, 2021
Washington, DC

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

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

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

5


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

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

Docket No. 19-0855
Issued: September 24, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 15, 2019 appellant filed a timely appeal from a February 28, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish greater than
17 percent permanent impairment of the right upper extremity, for which she received schedule
award compensation.
FACTUAL HISTORY
On January 11, 2016 appellant, then a 54-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her right wrist while in the performance
1

5 U.S.C. § 8101 et seq.

of duty. OWCP accepted the claim for unspecified fractures of the lower end of the right radius
and right ulna. It subsequently expanded acceptance of appellant’s claim to include an incomplete
rotator cuff tear or rupture of the right shoulder and unspecified complications of medical care.
On January 28, 2016 appellant underwent a closed reduction and percutaneous pinning of
her right distal radius fracture. On September 13, 2016 she underwent a right rotator cuff repair,
subacromial decompression, and resection of the acromioclavicular (AC) joint.
On May 23, 2017 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated June 6, 2017, OWCP requested that appellant submit an
impairment evaluation from her attending physician in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).2
In a June 14, 2017 impairment evaluation, Dr. Tuvi Mendel, a Board-certified orthopedic
surgeon, measured range of motion (ROM) of appellant’s bilateral shoulders and wrists. He found
that she had 3 percent permanent impairment of the upper extremity due to her wrist fracture and
12 percent impairment of the upper extremity due to her shoulder condition. Dr. Mendel rated
appellant’s impairment using the fifth edition of the A.M.A., Guides.3
On July 31, 2017 Dr. David J. Slutsky, a Board-certified orthopedic surgeon serving as a
district medical adviser (DMA), reviewed the evidence and opined that appellant had two percent
permanent impairment of the right upper extremity due to her nondisplaced distal radius fracture
using the diagnosis-based impairment (DBI) method set forth in the sixth edition of the A.M.A.,
Guides. He further found 10 percent permanent impairment of the right upper extremity due to
her right rotator cuff tear with AC joint resection using the DBI method.
By decision dated August 17, 2017, OWCP granted appellant a schedule award for
12 percent permanent impairment of the right upper extremity.
On September 1, 2017 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review.
Following a preliminary review, by decision dated December 15, 2017, OWCP’s hearing
representative vacated the August 17, 2017 decision. He instructed OWCP to obtain a
supplemental report from the DMA addressing the extent of appellant’s upper extremity
impairment due to loss of ROM in accordance with FECA Bulletin No. 17-06.4

2

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

3

A.M.A., Guides (5th ed. 2001).

4

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

2

On January 16, 2018 Dr. Slutsky advised that the ROM measurements obtained by
Dr. Mendel failed to conform to the provisions of the sixth edition of the A.M.A., Guides for
assessing motion.
On January 23, 2018 OWCP requested that appellant have her physician review the DMA’s
January 17, 2018 report and indicate whether his ROM measurements conformed to the sixth
edition of the A.M.A., Guides. It afforded her 30 days to submit the requested evidence.
In a February 1, 2018 response, appellant related that her physician only provided
impairment ratings using the fifth edition of the A.M.A., Guides.
On March 27, 2018 OWCP referred appellant to Dr. Farid Manshadi, a Board-certified
physiatrist, for a second opinion examination.
In a report dated April 26, 2018, Dr. Manshadi discussed appellant’s January 11, 2016
employment injury. He measured ROM of the bilateral wrists and shoulders three times and
obtained the average measurement. For the right wrist, Dr. Manshadi measured extension of
54 degrees, flexion of 53 degrees, radial deviation of 22 degrees, and ulnar deviation of 30 degrees.
He measured right shoulder forward flexion of 135 degrees, extension of 58 degrees, abduction of
11 degrees, external rotation of 71 degrees, internal rotation of 68 degrees, and adduction of
45 degrees. Dr. Manshadi further measured passive ROM of the right shoulder as 150 degrees
flexion, 150 degrees abduction, and 65 degrees extension. Using Table 15-3 on page 396 of the
A.M.A., Guides, he identified the diagnosis as a wrist fracture, which yielded a default value of
three percent. Dr. Manshadi applied a grade modifier for functional history (GMFH) of two, a
grade modifier for physical examination (GMPE) of one, and determined that a grade modifier for
clinical studies (GMCS) was inapplicable. He applied the net adjustment formula to find four
percent permanent impairment of the right upper extremity due to appellant’s wrist fracture.
For the right shoulder, Dr. Manshadi identified the CDX as an AC joint injury after a distal
clavicle resection or AC joint separation using Table 15-5 on page 403, which yielded a default
value of 10 percent. He found a GMFH of two, a GMPH of two, and that GMCS were inapplicable,
which yielded a 12 percent permanent impairment of the right upper extremity due to appellant’s
shoulder condition after applying the net adjustment formula. Dr. Manshadi opined that the DBI
method was more appropriate than the ROM impairment method as her active ROM was not within
10 degrees of her passive ROM.
On June 10, 2018 Dr. Slutsky concurred with Dr. Manshadi’s finding of four percent
permanent impairment of the right upper extremity due to appellant’s wrist fracture and 12 percent
permanent impairment of the right upper extremity due to her distal clavicle resection using the
DBI method. He further found that, for the right wrist, 53 degrees of flexion yielded three percent
impairment, 54 degrees extension yielded three percent impairment, 22 degrees radial deviation
yielded no impairment, and 30 degrees ulnar deviation yielded no impairment, for a total ROM
impairment of six percent.5 Dr. Slutsky applied a grade modifier of one which yielded no
adjustment. For the right shoulder, he determined that 135 degrees flexion yielded three percent
impairment, 58 degrees extension yielded no impairment, 111 degrees abduction yielded three
5

A.M.A., Guides 473, Table 15-32.

3

percent impairment, 45 degrees adduction yielded no impairment, 68 degrees internal rotation
yielded two percent impairment, and 71 degrees external rotation yielded no impairment, for a
total impairment due to loss of ROM of eight percent.6 Dr. Slutsky found no adjustment after
application of the grade modifier of one.
In a supplemental report dated December 8, 2018, Dr. Slutsky again advised that, for her
right wrist, appellant had four percent permanent impairment of the upper extremity using the DBI
method and six percent permanent impairment of the upper extremity using the ROM method. For
the right shoulder, he found 12 percent permanent impairment of the upper extremity using the
DBI method and 8 percent permanent impairment of the upper extremity using the ROM method.
Dr. Slutsky combined the 6 percent impairment of the right upper extremity using the ROM
method due to appellant’s wrist condition with the 12 percent impairment of the right upper
extremity using the DBI method due to her shoulder condition to find 17 percent permanent
impairment of the right upper extremity.
On February 3, 2019 Dr. Slutsky clarified that combining 6 percent impairment and 12
percent yielded 17 percent permanent impairment as indicated in his prior report.7 He noted that
he had used ROM method for the wrist and the DBI method for the shoulder as it yielded the
greater impairment rating.
By decision dated February 28, 2019, OWCP granted appellant a schedule award for an
additional 5 percent permanent impairment of the right upper extremity, for a total right upper
extremity impairment of 17 percent. The period of the award ran for 15.6 weeks from March 4 to
June 21, 2018.
LEGAL PRECEDENT
The schedule award provisions of FECA,8 and its implementing federal regulations,9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.10 The Board has approved the use by
6

Id. at 475.

7

Id. at 419, 604.

8

Supra note 1.

9

20 C.F.R. § 10.404.

10

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).

4

OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE, and
GMCS.13 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14
Evaluators are directed to provide reasons for their impairment choices, including the choices of
diagnoses from regional grids and calculations of modifier scores.15
The A.M.A., Guides also provide that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable.16 If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
measured and added.17 Adjustments for functional history may be made if the evaluator
determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable.18
Regarding the application of ROM or DBI methodologies in rating permanent impairment
of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).”
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
11

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

12

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
13

Id. at 494-531.

14

Id. at 411.

15

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

16

A.M.A., Guides 461.

17

Id. at 473.

18

Id. at 474.

5

impairment rating for the diagnosis in question, the method producing the higher
rating should be used.”19 (Emphasis in the original.)
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 17
percent permanent impairment of the right upper extremity, for which she received schedule award
compensation.
In an impairment evaluation dated June 14, 2017, Dr. Mendel opined that appellant had 12
percent permanent impairment of the right upper extremity due to her shoulder condition and 3
percent permanent impairment due to her wrist fracture. However, he utilized the fifth edition of
the A.M.A., Guides in reaching his impairment rating, and thus his opinion is of diminished
probative value.20
OWCP referred appellant to Dr. Manshadi for a second opinion examination. In an
April 26, 2018 impairment evaluation, Dr. Manshadi measured ROM of the right wrist and
shoulder three separate times. For the right wrist, he identified the CDX as a wrist fracture using
Table 15-3 on page 396 of the A.M.A., Guides, for a default value of three percent. Dr. Manshadi
found a GMFH of two, a GMPE of one, and that a GMCS was not applicable. He applied the net
adjustment formula and found four percent permanent impairment of appellant’s right upper
extremity due to her right wrist fracture.21 For the right shoulder, Dr. Manshadi identified the
CDX as an AC joint injury after a distal clavicle resection or AC joint separation using Table 155 on page 403, which yielded a default value of 10 percent. He applied a GMFH of two, a GMPH
of two, and determined that GMCS were inapplicable, which yielded an adjustment of two after
using the net adjustment formula and 12 percent permanent impairment of the right upper
extremity due to appellant’s shoulder condition.22 Dr. Manshadi opined that the ROM was not
appropriate as her active ROM was not within 10 degrees of passive ROM.
On June 10, 2018 Dr. Slutsky, the DMA, concurred with Dr. Manshadi’s finding of 4
percent permanent impairment of the right upper extremity due to appellant’s right wrist fracture
right wrist and 12 percent permanent impairment of the right upper extremity due to her AC joint
injury using the DBI method. He used Dr. Manshadi’s average ROM measurements to find that,
for the right shoulder, 135 degrees flexion yielded three percent impairment, 58 degrees extension
yielded no impairment, 111 degrees abduction yielded three percent impairment, 45 degrees
adduction yielded no impairment, 68 degrees internal rotation yielded two percent impairment,
and 71 degrees external rotation yielded no impairment, which he added to find a total impairment

19

V.L., Docket No. 18-0760 (issued November 13, 2018); supra note 4.

20

S.J., Docket No. 16-1162 (issued February 8, 2017) (a medical opinion not based on the appropriate edition of
the A.M.A., Guides is of diminished probative value in determining the extent of permanent impairment).
21

Utilizing the net adjustment formula discussed above, (GMFH-CDX) + (GMPE-CDX), or (2-1) + (1-1) = 1,
yielded an adjustment of one.
22

GMFH-CDX) + (GMPE-CDX), or (2-1) + (2-1) = 2, yielded an adjustment of two.

6

due to loss of ROM of eight percent.23 For the right wrist, Dr. Slutsky found that 53 degrees of
flexion yielded three percent impairment, 54 degrees extension yielded three percent impairment,
22 degrees radial deviation yielded no impairment, and 30 degrees ulnar deviation yielded no
impairment, for a total ROM impairment of six percent.24
On December 8, 2018 Dr. Slutsky opined that appellant had four percent permanent
impairment of the right upper extremity using the DBI method and six percent permanent
impairment of the upper extremity using the ROM method due to her right wrist condition. He
further found 12 percent permanent impairment of the upper extremity using the DBI method and
8 percent permanent impairment of the upper extremity using the ROM method for her right
shoulder condition. Dr. Slutsky used the DBI method to rate appellant’s right shoulder impairment
and the ROM method to rate her right wrist impairment as those methods yielded the higher
permanent impairment rating.25 He combined the 12 percent permanent impairment of the right
upper extremity due to her shoulder condition using the DBI method with the 6 percent permanent
impairment of the right upper extremity due to her wrist condition using the ROM method to find
17 percent permanent impairment of the right upper extremity.
As there is no current medical evidence of record conforming to the sixth edition of the
A.M.A., Guides demonstrating greater than 17 percent permanent impairment of the right upper
extremity, appellant has not met her burden of proof to establish entitlement to a greater schedule
award.26
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish greater than
17 percent permanent impairment of the right upper extremity, for which she received schedule
award compensation.

23

A.M.A., Guides 475.

24

Id. at 473, Table 15-32.

25

Supra note 4; N.A., Docket No. 19-0248 (issued May 17, 2019).

26

See J.F., Docket No. 19-0166 (issued July 29, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the February 28, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 24, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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)
)

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

Docket No. 13-1271
Issued: September 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 29, 2013 appellant filed a timely appeal of an April 11, 2013 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) which denied her request for
reconsideration. As more than 180 days has elapsed from the issuance of the most recent merit
decision of October 5, 2012, to the filing of this appeal, the Board lacks jurisdiction to review the
merits of this case. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board only has jurisdiction over the nonmerits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 11, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that OWCP was not diligent in filing evidence for her case
as it lost a November 7, 2012 report from Dr. Dexter Love, a Board-certified orthopedic surgeon,
which she submitted with her request for reconsideration.
FACTUAL HISTORY
On January 4, 2012 appellant, then a 47-year-old system analyst, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a back injury as a result of lifting, bending,
packing and carrying equipment in the performance of duty on January 3, 2012.
By decision dated March 2, 2012, OWCP denied the claim on the basis that appellant had
not established fact of injury.
Appellant requested reconsideration on March 6, 2012.
By decision dated June 20, 2012, OWCP denied modification of the March 2, 2012
decision.
On June 20, 2012 appellant requested reconsideration for a second time. By decision
dated October 5, 2012, OWCP denied modification of the June 20, 2012 decision.
On October 10, 2012 appellant requested reconsideration of the October 5, 2012 decision,
indicating that she had enclosed additional medical evidence.
By decision dated April 11, 2013, OWCP denied appellant’s request for reconsideration
of the merits noting that additional evidence was not received. Appellant did not submit
pertinent new and relevant evidence and did not show that OWCP erroneously applied or
interpreted a point of law not previously considered by OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.3 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).4
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
3

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

See Annette Louise, 54 ECAB 783, 789-90 (2003).

5

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

2

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
On appeal, appellant contends that OWCP was not diligent in filing evidence for her case
as it lost a November 7, 2012 report from Dr. Love which she submitted with her request for
reconsideration. On October 10, 2012 she requested reconsideration, indicating that she had
enclosed additional medical evidence. In its April 11, 2013 decision, OWCP denied appellant’s
request, noting that additional medical evidence was not received as part of the reconsideration
request. As the record shows that OWCP did not receive any additional medical evidence from
appellant, the Board finds that her argument is not substantiated.
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP. Because she did not submit any evidence with her request for
reconsideration, the Board finds that she did not meet any of the necessary requirements and she
is not entitled to further merit review.
The Board notes that, following the issuance of the April 11, 2013 OWCP decision on
appeal, appellant submitted new medical evidence. The Board is precluded from reviewing
evidence which was not before OWCP at the time it issued its final decision. Appellant may
resubmit this evidence, together with a written request for reconsideration to OWCP within one
year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through
10.607.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.607(a).

7

Id. at § 10.608(b).

3

ORDER
IT IS HEREBY ORDERED THAT the April 11, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 3, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.J., Appellant
and
U.S. POSTAL SERVICE, REVERE CARRIER
ANNEX, Revere, MA, Employer
__________________________________________

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Appearances:
John L. DeGeneres, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0489
Issued: December 21, 2020

Case Submitted on the Record

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

JURISDICTION
On January 2, 2020 appellant, through counsel, filed a timely appeal from a November 6,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more
than 180 days has elapsed from OWCP’s last merit decision, dated April 27, 2018, to the filing of

1

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

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules
of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). The Board, in exercising
its discretion, denies the request for oral argument finding that the arguments on appeal could adequately be addressed
based on the case record as the Board does not have jurisdiction over the merits of this case.

this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
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 24, 2017 appellant, then a 51-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed bilateral knee and hip osteoarthritis as a
result of factors of his federal employment. He noted that he first became aware of his condition
and realized its relationship to his federal employment on December 1, 2016.
In a November 8, 2016 statement, appellant provided a history of his work for the
employing establishment commencing in 1993 and described his repetitive work duties. He
indicated that he had never been absent from work for more than three days. Appellant also
indicated that he had no periods of light duty, limited duty, or modified duty.
Appellant submitted medical evidence that predated his occupational disease claim and
addressed his lumbar and bilateral hip conditions.
Appellant also submitted a December 1, 2016 letter by Dr. Byron V. Hartunian, an
attending orthopedic surgeon specializing in sports medicine. Dr. Hartunian noted appellant’s
description of his letter carrier work duties and reviewed an official copy of the position
description. He repeated appellant’s history of lumbar and bilateral hip and knee symptoms and
medical treatment. Dr. Hartunian discussed examination findings and reviewed diagnostic test
results. He diagnosed right hip arthritis with a zero millimeter (mm) cartilage interval at the
femoral-acetabular joint, primary right knee arthritis with a three mm cartilage interval at the
medial femorotibial joint, left hip arthritis with a zero mm cartilage interval at the femoralacetabular joint, and primary left knee arthritis with a three mm cartilage interval at the medial
femorotibial joint. Dr. Hartunian opined that appellant suffered from degenerative osteoarthritis
of both hips and knees that was likely aggravated by his work activities, which included repetitive
lifting, walking, and climbing. He explained that this likely permanently aggravated his bilateral
hip and knee osteoarthritis. Dr. Hartunian noted that the aggravation was permanent as appellant’s
loss of cartilage was irreversible. He advised that the work duties involved in his 20-year career
hastened his osteoarthritis and without 20 years of letter carrying the disease would not have
progressed as early and fast as it had. Dr. Hartunian concluded that there was no doubt that
appellant’s impact-loading activities contributed to the development and progression of his
bilateral hip and knee osteoarthritis.
OWCP, in June 27, 2017 development letter, requested additional information from the
employing establishment. In a June 28, 2017 development letter, it informed appellant of the
deficiencies of his claim. OWCP advised him of the type of factual and medical evidence
3

5 U.S.C. § 8101 et seq.

2

necessary to establish his claim and provided a questionnaire for his completion. It afforded both
parties 30 days to submit the necessary evidence.
On July 26, 2017 appellant, through counsel, responded to OWCP’s development letter.
He described his activities outside his federal employment.
Counsel contended that
Dr. Hartunian’s December 1, 2016 report was sufficient to establish causal relationship between
appellant’s bilateral knee and hip condition and his repetitive work duties.
Appellant submitted additional medical evidence that predated his occupational disease
claim and addressed, among other things, his lumbar and hip conditions.
Appellant also submitted a February 24, 2017 medical report by Dr. Michael B. Bader, a
Board-certified internist. Dr. Bader diagnosed, among other things, unspecified osteoarthritis,
unspecified site.
OWCP, by decision dated September 5, 2017, denied appellant’s occupational disease
claim, finding that the evidence of record was insufficient to establish that his diagnosed bilateral
hip and knee condition was causally related to the accepted factors of his federal employment. As
such, it concluded that the requirements had not been met to establish an injury or medical
condition as causally related to the accepted employment factors.
On September 19, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. On February 7, 2018 counsel instead
requested a review of the written record.
OWCP continued to receive medical evidence that predated appellant’s occupational
disease claim and addressed his lumbar and bilateral hip conditions.
By decision dated April 27, 2018, an OWCP hearing representative affirmed the
September 5, 2017 decision, finding that Dr. Hartunian’s December 1, 2016 opinion was
speculative and insufficient to establish causal relationship.
On September 13, 2019 appellant, through counsel, requested reconsideration. Counsel
contended that an accompanying letter dated September 10, 2019 by Dr. Hartunian established a
bilateral hip and knee condition causally related to the accepted factors of appellant’s federal
employment. In this letter, Dr. Hartunian reiterated his opinions that appellant’s hip and knee
arthritis was permanently aggravated by the work activities he performed during his 20-year
career, which hastened his condition and that without these activities, the disease would not have
progressed as early and fast as it did. He restated his opinion that there was no doubt that
appellant’s high-impact loading work activities contributed to the development and progression of
his arthritis. Dr. Hartunian maintained that the duration and extent of these activities deﬁnitively
established causal relationship.
By decision dated November 6, 2019, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

3

LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.5 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).6
Imposition of this one-year filing limitation does not constitute an abuse of discretion.7
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error.8 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates clear evidence of error on the part of OWCP.9
In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record.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 manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. 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

4
5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
5

20 C.F.R. § 10.607(a).

6

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

7
G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
8

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
9

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).
10

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
11

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

4

the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP.12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations13 and procedures14 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.15
The most recent merit decision was OWCP’s April 27, 2018 decision which denied modification
of its denial of appellant’s occupational disease claim. As his request for reconsideration was not
received by OWCP until September 13, 2019, more than one year after the April 27, 2018 decision,
the Board finds that it was untimely filed. Because appellant’s request was untimely filed, he must
demonstrate clear evidence of error on the part of OWCP in having denied his occupational disease
claim.
In support of his untimely request for reconsideration, appellant, through counsel,
submitted Dr. Hartunian’s September 10, 2019 correspondence and contended that it established
a bilateral hip and knee condition causally related to the accepted factors of his federal
employment. In his correspondence, Dr. Hartunian referenced his prior December 1, 2016 report
and reiterated his causation opinion and rationale and explained that the accepted employment
factors were sufficient to have resulted in appellant’s current bilateral hip and knee osteoarthritis.
While Dr. Hartunian provided rationale in support of his opinion that appellant sustained an
employment-related injury, which may have required further development if submitted prior to
OWCP’s denial, it is not manifest on its face that OWCP committed an error in denying appellant’s
claim.
The Board has held that the term clear evidence of error is intended to represent a difficult
standard. The claimant must present evidence that on its face shows that OWCP made an error.16
Even a detailed, well-rationalized medical report, which would have required further development
if submitted prior to issuance of the denial decision, does not constitute clear evidence of error.17
12

U.C., Docket No. 19-1753 (issued June 10, 2020).

13
20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB
247 (2005).
14

Supra note 6 at Chapter 2.1602.4 (February 2016); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
15

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

16

G.B., Docket No. 19-1762 (issued March 10, 2020).

17

A.M., Docket No. 20-0143 (issued October 28, 2020); T.C., Docket No. 19-1709 (issued June 5, 2020); D.G.,
Docket No. 18-1038 (issued January 23, 2019); E.B., Docket No. 18-1091 (issued December 28, 2018); D.G., 59
ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).

5

It is not enough to show that evidence could be construed so as to produce a contrary conclusion.
Instead, the evidence must shift the weight in appellant’s favor.18 Dr. Hartunian’s report therefore
does not demonstrate clear evidence of error and would not require a merit review of the case.19
The Board thus finds that appellant has not raised an argument or submitted any evidence
that manifests on its face that OWCP committed an error in denying his occupational disease claim.
Appellant has therefore not provided evidence of sufficient probative value to raise a substantial
question as to the correctness of OWCP’s April 27, 2018 decision.20 Thus, the Board finds that
his untimely request for reconsideration failed to demonstrate clear evidence of error.21
On appeal counsel contends that OWCP committed clear evidence of error as it did not
find that Dr. Hartunian provided a definitive opinion on causal relationship based on objective
evidence that raised an uncontroverted inference of causal relationship. As explained above, the
Board finds that the evidence submitted with the untimely reconsideration request is insufficient
to meet appellant’s burden of proof.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

18

A.M., id.; T.C., id., D.G., id.; E.B., id.; M.N., Docket No. 15-0758 (issued July 6, 2015).

19

Id.

20

See J.V., Docket No. 18-0963 (issued February 13, 2020); S.P., Docket No. 17-1708 (issued February 23, 2018).

21

See J.D., Docket No. 18-1765 (issued June 11, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the November 6, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 2020
Washington, DC

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

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

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

7