United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, ROCKFORD
CARRIER ANNEX, Rockford, MI, Employer
__________________________________________

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

Docket No. 20-1579
Issued: August 6, 2021

Case Submitted on the Record

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

JURISDICTION
On August 31, 2020 appellant filed a timely appeal from March 24 and June 19, 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 19, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 16
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On August 9, 2016 appellant, then a 59-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on August 6, 2016 she injured her right shoulder and upper back when she
reached out to try and stop a package from falling while in the performance of duty.4 She stopped
work on August 6, 2016 and accepted a full-time, modified-duty job offer as a sales, services, and
distribution associate on August 17, 2016. OWCP accepted appellant’s claim for right shoulder
joint sprain.
On June 26, 2018 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
Appellant submitted a May 8, 2018 impairment rating report by Dr. Mark Seldes, a Boardcertified family medicine specialist. Utilizing the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),5 Dr. Seldes
determined that according to Table 15-34, range of motion (ROM), page 475, she had 24 percent
right upper extremity permanent impairment due to loss of ROM of her right shoulder.
OWCP subsequently referred appellant, along with a statement of accepted facts (SOAF),
the medical record, and a series of questions to Dr. Arthur Dinenberg, a Board-certified orthopedic
surgeon, for a second-opinion examination. In a November 14, 2018 report, Dr. Dinenberg noted
his review of the SOAF and her accepted conditions under the present claim and her previous
claims. He indicated that he was unable to provide an impairment rating because appellant was
unable to complete her physical examination due to increased pain.
In a December 31, 2018 report, Dr. Jovito Estaris, a Board-certified preventive and
occupational medicine specialist, serving as an OWCP district medical adviser (DMA), indicated
3

Docket No. 19-0965 (issued December 3, 2019).

4

OWCP assigned the present claim OWCP File No. xxxxxx361. Appellant has a previously accepted occupational
disease claim (Form CA-2) under OWCP File No. xxxxxx468 for back sprain, thoracic sprain, right rotator cuff sprain,
and right shoulder adhesive capsulitis causally related to factors of her federal employment. Under the previous claim,
OWCP File No. xxxxxx468, OWCP granted appellant a schedule award for 16 percent right upper extremity
permanent impairment. OWCP administratively combined OWCP File No. xxxxxx468 with OWCP File
No. xxxxxx361, designating OWCP File No. xxxxxx468 as the master file.
5

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

2

that he was unable to complete an impairment rating because there were no physical examination
findings from Dr. Dinenberg for him to review.
In a January 10, 2019 decision, OWCP denied appellant’s schedule award claim finding
that the medical evidence of record was insufficient to establish that she sustained a permanent
impairment due to her accepted August 6, 2016 employment injury.
Appellant appealed to the Board. In a December 3, 2019 decision, the Board set aside the
January 10, 2019 OWCP decision and remanded the case to OWCP for referral back to
Dr. Dinenberg in order to complete his examination or to another appropriate specialist for a
second-opinion examination.
On remand OWCP referred appellant’s case to Dr. Patrick J. Horan, a Board-certified
orthopedic surgeon, for a second-opinion evaluation and opinion in order to determine whether
she had sustained additional right upper extremity permanent impairment in accordance with the
A.M.A., Guides. In a February 4, 2020 report, Dr. Horan noted that his review of the SOAF and
that appellant’s present claim was accepted for right shoulder sprain. Upon physical examination,
he recounted her complaints of pain even on light touch of her right shoulder. Dr. Horan provided
ROM measurements, performed three times after warm up, and indicated that appellant was less
participatory with each attempt. He noted that her ROM testing was limited by her participation
and the fact that she did not want to put herself in any discomfort. Dr. Horan reported that
appellant’s maximum ROM of her right shoulder revealed 85 degrees forward flexion, 30 degrees
extension, 70 degrees abduction, 30 degrees adduction, 45 degrees external rotation, and 50
degrees internal rotation.
To determine the degree of appellant’s permanent impairment, Dr. Horan first utilized the
ROM method. He calculated that she had 3 percent permanent impairment due to 90 degrees of
forward flexion, rounded from 85 degrees, 1 percent permanent impairment due to 30 percent
extension, 6 percent permanent impairment due to 70 degrees abduction, 1 percent permanent
impairment due to 30 degrees adduction, 2 percent permanent impairment due to 50 degrees
internal rotation, and 2 percent permanent impairment due to 50 degrees of external rotation,
rounded from 45 degrees, for a total of 15 percent right upper extremity permanent impairment.
Regarding the diagnosis-based impairment (DBI) method to determine permanent impairment,
Dr. Horan referenced Table 15-5, Shoulder Regional Grid, page 403, of the A.M.A., Guides, and
reported that a condition of rotator cuff injury, full-thickness tear with residual loss of function
and loss of function equated to a class of diagnosis (CDX) of 1-E with a default value of seven
percent lower extremity permanent impairment.6 He explained that because the impairment rating
method by ROM was more substantial, he would choose the ROM impairment rating. Dr. Horan
noted that appellant had reached maximum medical improvement (MMI) as of February 4, 2020.
In a March 21, 2020 report, Dr. Estaris, serving as the DMA, reviewed the case file and
indicated that he was unable to apply the ROM method to determine appellant’s impairment rating
because the ROM measurements provided by Dr. Horan were unreliable. He noted that Dr. Horan
documented that appellant was less participatory with each ROM measurement attempt.
Dr. Estaris further explained that the ROM measurements for flexion and extension did not fall
6

A.M.A., Guides 403, Table 15-5.

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within 10 degrees of the mean as required on page 464 of the A.M.A., Guides. Utilizing the DBI
rating method, he referenced Table 15-5, page 403, of the A.M.A., Guides and assigned a CDX of
1 for a default impairment rating of five percent due to rotator cuff injury, full-thickness tear with
residual loss, function, and motor deficits. Dr. Estaris assigned a grade modifier for functional
history (GMFH) of 2 due to pain with normal activity, a grade modifier for physical examination
(GMPE) of 2 due to mild-to-moderate ROM limitation, and a grade modifier for clinical studies
(GMCS) of 2 due to diagnostic testing. After applying the net adjustment formula, (2-1) + (2-1)
+ (2-1) = 3, he calculated that appellant had a final upper extremity impairment of seven percent
right upper extremity permanent impairment. Dr. Estaris explained that since she had a previous
schedule award of 16 percent permanent impairment for the right shoulder, she was not entitled to
an additional award. He also reported a date of MMI of February 4, 2020 the date of Dr. Horan’s
examination.
By decision dated March 24, 2020, OWCP denied appellant’s claim for an increased
schedule award. It found that she had not submitted medical evidence demonstrating greater than
the 16 percent permanent impairment of the right upper extremity previously awarded.
On May 12, 2020 appellant requested reconsideration and submitted additional medical
evidence.
In a May 3, 2020 report, Dr. Seldes indicated that he had reviewed Dr. Horan’s February 4,
2020 report, and alleged that the first ROM measurement was valid to the point where appellant
moved it prior to having significant pain. Applying Dr. Horan’s ROM test findings, he determined
that appellant had 9 percent permanent impairment for 80 degrees flexion, 1 percent permanent
impairment for 30 degrees extension, 6 percent permanent impairment for 70 degrees abduction,
1 percent permanent impairment for 30 degrees abduction, 4 percent permanent impairment for 40
degrees external rotation, and 2 percent permanent impairment for 50 degrees internal rotation for
a total of 24 percent right upper extremity permanent impairment. Dr. Seldes explained that he
rounded ROM measurements to the nearest whole number down ending in zero in accordance with
the A.M.A., Guides, page 461, paragraph 15.7a. He concluded that since appellant was previously
awarded 16 percent right upper extremity permanent impairment for her right shoulder, she was
entitled to an additional 8 percent permanent impairment for the right upper extremity.
In a June 13, 2020 report, Dr. Estaris indicated that he disagreed with Dr. Seldes’s May 3,
2020 report, and his calculation of rounding ROM measurements down. He asserted that
according to the mathematical formula for rounding numbers, any number that ends in five through
nine is rounded up and any number that ends in four through one is rounded down. Dr. Estaris
reiterated his previous opinion that the ROM method for rating impairment was not applicable in
this case as Dr. Horan’s ROM measurements were unreliable and not in accordance with the
A.M.A., Guides.
By decision dated June 19, 2020, OWCP denied modification of the March 24, 2020
decision.

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LEGAL PRECEDENT
The schedule award provisions of FECA7 and its implementing regulations8 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 of loss of a member shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants and the Board has concurred in such
adoption.9 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards.10
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. With respect to the shoulder, the relevant portion of the arm for the present case,
reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401. After the CDX
is determined from the Shoulder Regional Grid (including identification of the default grade
value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS.11 The net
adjustment formula is (GMFH – CDX) + (GMPE – CDX) + (GMCS – CDX).12 Under Chapter
2.3, evaluators are directed to provide reasons for their impairment choices, including the choices
of diagnoses from regional grids and calculations of modifier scores.13
Regarding the application of ROM or DBI impairment 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.,]
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404 (a); see also T.T., Docket No. 18-1622 (issued May 14, 2019); Jacqueline S. Harris, 54 ECAB
139 (2002).
10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
11

A.M.A., Guides 405-12; see M.P., Docket No. 13-2087 (issued April 8, 2014).

12

Id. at 411.

13

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

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Guides identify a diagnosis that can alternatively be rated by ROM. If the
[A.M.A.,] Guides allow for the use of both the DBI and ROM methods to calculate
an impairment rating for the diagnosis in question, the method producing the
higher rating should be used.” (Emphasis in the original.)14
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allows for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”15
A claimant may seek an increased schedule award if the evidence establishes that he or she
sustained an increased impairment causally related to an employment injury. 16 The medical
evidence must include a detailed description of the permanent impairment.17
ANALYSIS
The Board finds that the case is not in posture for decision.
Following the Board’s previous December 3, 2019 decision, OWCP referred appellant’s
case to Dr. Horan for a second-opinion evaluation and opinion in order to determine whether she
had sustained additional right upper extremity permanent impairment in accordance with the
A.M.A., Guides. In a February 4, 2020 report, Dr. Horan provided three ROM measurements for
her right shoulder and indicated that ROM testing was limited by her participation. He utilized
the ROM method under the A.M.A., Guides and calculated that appellant had 3 percent permanent
impairment due to 90 degrees of forward flexion, 1 percent permanent impairment due to 30
percent extension, 6 percent permanent impairment due to 70 degrees abduction, 1 percent
permanent impairment due to 30 degrees adduction, 2 percent permanent impairment due to 50
degrees internal rotation, and 2 percent permanent impairment due to 50 degrees of external
rotation, for a total of 15 percent right upper extremity permanent impairment. Under the DBI
method, Dr. Horan referenced Table 15-5 of the A.M.A., Guides, and indicated that appellant had
seven percent right upper extremity permanent impairment for the CDX of rotator cuff injury, fullthickness tear with residual loss of function and loss of function. He explained that, since the
ROM impairment rating method was more substantial, she had 15 percent right upper extremity
permanent impairment.
In reports dated March 21 and June 4, 2020, Dr. Estaris, the DMA, identified multiple
concerns he had with Dr. Horan’s permanent impairment rating and explained that it was not
carried out in accordance with the sixth edition of the A.M.A., Guides. He indicated that the ROM
14

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

15

Id.

16

See Rose V. Ford, 55 ECAB 449 (2004).

17

See Vanessa Young, 55 ECAB 575 (2004).

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measurements provided by Dr. Horan were unreliable since appellant was less participatory with
each ROM measurement attempt. Dr. Estaris also noted that the ROM measurements for flexion
and extension did not fall within 10 degrees of the mean as required on page 464 of the A.M.A.,
Guides. The Board finds that the DMA’s concerns regarding Dr. Horan’s impairment rating are
valid and it was improper for OWCP to deny appellant’s claim for an increased schedule award
without addressing these concerns.18
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.19 While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.20 Once OWCP undertakes to develop the medical evidence further, it has the
responsibility to do so in a manner that will resolve the relevant issues in the case.21 Accordingly,
as OWCP undertook development of the evidence by referring appellant to a second-opinion
physician, it has a duty to secure an appropriate report addressing the relevant issues.22
The Board thus finds that further development of the medical evidence is required to
determine the extent of appellant’s permanent impairment for schedule award purposes since
Dr. Horan failed to provide an opinion on permanent impairment in accordance with the relevant
standards.23 On remand, OWCP should refer her back to Dr. Horan or to another second-opinion
physician in the appropriate field of medicine. The second-opinion physician should obtain ROM
findings based upon three ROM trials in accordance with the A.M.A., Guides in order to determine
whether appellant has loss of ROM of the right shoulder from her accepted employment injury.
Additionally, OWCP should apprise her of the penalty provisions of section 8123(d) of FECA.24
If applicable, it should impose such sanctions, in the proper manner, upon making a finding that
appellant malingered or otherwise obstructed the examination.25 After such further development
as OWCP deems necessary, a de novo decision shall be issued regarding her permanent
impairment.

18

See N.G., Docket No. 20-0557 (issued January 5, 2021).

19

N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 2019); B.A.,
Docket No. 17-1360 (issued January 10, 2018).
20

S.S., Docket No. 18-0397 (issued January 15, 2019); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
21

T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

22

M.S., Docket No. 19-1401 (issued July 8, 2020); B.W., Docket No. 19-0965 (issued December 3, 2019).

23

M.A., Docket No. 19-1732 (issued September 9, 2020).

24

5 U.S.C. § 8123(d); see Charles A. McNeely, 40 ECAB 484 (1989). On remand, the Board directed OWCP to
retest appellant and apprise him of the penalty provisions of 5 U.S.C. § 8123(d) and to impose stated sanctions, if
applicable, if there was a finding of malingering or obstruction of the examination.
25

Id.

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CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 19, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: August 6, 2021
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newburg, NY, Employer
__________________________________________

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Appearances:
Katherine Smith, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1815
Issued: August 5, 2010

Case Submitted on the Record

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

JURISDICTION
On July 2, 2009 appellant filed a timely appeal from a July 2, 2008 merit decision of the
Office of Workers’ Compensation Programs affirming the denial of her disability claims.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was disabled
commending April 27, May 7, 23 and 29, 2007 causally related to her accepted conditions.
FACTUAL HISTORY
On June 15, 2006 appellant, then a 40-year-old clerk, injured her head and neck when she
struck her head on rafters while attempting to retrieve express mail. The Office accepted her
claim for a neck sprain and postconcussion syndrome. Appellant stopped work on June 16, 2006
and returned to a part-time light-duty job on June 20, 2006.

Appellant sought treatment from Dr. Ravi Ramaswami, a Board-certified family
practitioner, from August 21 to September 25, 2006 for neck and head discomfort caused by the
work injury. An August 20, 2006 magnetic resonance imaging (MRI) scan of the cervical spine
revealed cervical spondylosis and foraminal stenosis with no compression of the spinal cord.
On December 4, 2006 Dr. Elena L. Ivashina, a Board-certified neurologist, diagnosed
cervicalgia, post work-related injury and cervical spondylosis with lower foraminal stenosis. On
January 8, 2007 she noted that appellant had a recent exacerbation of pain after prolonged and
repetitive mail sorting and recommended acupuncture with physical therapy. In a January 11,
2007 work capacity report, Dr. Ivashina returned appellant to work at limited duty, six hours a
day with restrictions. On January 16, 2007 the employing establishment offered appellant a
modified distribution window clerk position for six hours a day based on her medical
restrictions. Appellant accepted the position and returned to work that day. On March 2, 2007
she was released to full-time work with restrictions. Appellant was offered a modified
distribution window clerk position eight hours a day subject to the restrictions that she accepted
on March 10, 2007.
On April 30, 2007 appellant filed a notice of recurrence of disability commencing
April 21, 2007 causally related to her accepted injury. She stopped work on April 27, 2007 and
returned to her light-duty position on May 1, 2007.
On May 11, 2007 appellant claimed a recurrence of disability alleging neck pain and
headaches as of May 7, 2007 due to her accepted injury. She stopped work on May 7, 2007 and
returned to a light-duty position on May 12, 2007.
On May 27, 2007 appellant claimed a recurrence of disability commencing May 23, 2007
causally related to her accepted injury. She stopped work that day and returned to light duty on
May 24, 2007.
On June 4, 2007 appellant claimed a recurrence of disability as of May 29, 2007. She
stopped work and did not return. The employing establishment controverted appellant’s claims,
noting that she was off duty and that driving had aggravated her injury, although she had no
driving restrictions.
With each notice of recurrence, the Office advised appellant of the type of evidence
needed to establish her disability claim. It requested that she submit a physician’s reasoned
opinion addressing the relationship of her disability to her accepted conditions.
Appellant submitted duty status reports dated April 18 and 30, 2007 from Dr. Ivashina,
who reiterated that she could perform her job with restrictions. In an April 30, 2007 prescription
note Dr. Ivashina advised that appellant was treated for increasing neck pain and was excused
from work that day. On May 2 and 15, 2007 she advised that since April 18, 2007 appellant was
treated twice for complaint of increased neck pain after prolonged mail sorting. Dr. Ivashina
recommended limiting her activities until her next evaluation due to cervicalgia and cervical
spondylosis. On May 9, 2007 Dr. Ramaswami advised appellant that she was unable to work on
May 9 and 10, 2007 due to aggravation of her neck injury. In a May 11, 2007 work capacity
report, he returned her to work restricted duty. In prescription notes dated May 23 and 26, 2007,

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Dr. Ramaswami advised that appellant was unable to work on those days. In a May 29, 2007
prescription note, he advised that appellant was unable to work on May 29 and 30, 2007 due to
neck and back pain from a work injury.
On May 30, 2007 appellant was treated by Dr. Jan O. Johansson, a Board-certified
physiatrist, who diagnosed cervicalgia, possible C5 radiculopathy and recommended a trial of
acupuncture. She noted that appellant returned to work but her work duties involved more than
two and a half hours of mail sorting that produced pain. Dr. Johansson returned appellant to
work without restrictions. A June 1, 2007 cervical spine MRI scan showed cervical spondylosis
and mild foraminal stenosis. Appellant submitted statements attributing her intermittent
disability to a change in her accepted condition. She noted that her light-duty job did not change
or become more demanding but her condition changed starting on April 21, 2007 after sorting
mail.
The Office referred appellant to Dr. Patrick Hughes, a Board-certified orthopedic
surgeon, for a second opinion regarding the nature and extent of her capacity to work due to her
accepted condition. In a June 12, 2007 report, Dr. Hughes reviewed the history of injury and
medical treatment. He stated that examination revealed normal strength bilaterally, reflexes were
normal and symmetrical and sensation was normal. Dr. Hughes diagnosed a history of head
injury and acute cervical strain and opined that appellant’s complaints of pain suggested
symptom magnification. He found that she fully recovered from the effects of the work injury
and could return to her date-of-injury clerk job. Dr. Hughes opined that appellant reached
maximum medical improvement and required no further medical treatment.
On June 11, 2007 the employing establishment advised appellant that she would be
removed from her job effective July 14, 2007 due to her failure to perform the duties of her
position.
On February 20, 2007 Dr. Ivashina noted that appellant had improvement of pain
symptoms with acupuncture but was exacerbated after prolonged repetitive arm movement. She
diagnosed cervicalgia, cervical spondylosis with foraminal stenosis and opined that appellant’s
symptoms were most likely exacerbated after the work injury. Dr. Ivashina returned appellant to
work with restrictions not to lift more than 15 pounds and no mail sorting. In a March 2, 2007
report, she treated appellant for neck pain and reiterated the diagnoses. On April 16, 2007
Dr. Ivashina noted that appellant experienced significant improvement after massage therapy and
was doing better at mail sorting with breaks every 30 minutes. She returned appellant to work 8
hours a day with restrictions of sorting 30 minutes with a 10-minute break and no lifting mail
from a cart. On April 30, 2007 Dr. Ivashina noted that appellant had neck and shoulder pain
when performing repetitive arm movements. She diagnosed cervicalgia and headaches most
likely of cervicogenic origin. Dr. Ivashina returned appellant to work with limitations on sorting
mail and lifting. On June 15, 2007 she treated appellant for neck pain and advised that appellant
would be off work until June 16, 2007.
In prescription notes dated May 31 and June 5, 2007, Dr. Ramaswami noted that
appellant was out of work due to her injury. On June 15, 2007 he noted that she had persistent
neck pain and muscle spasm and was unable to work. In a June 18, 2007 prescription note,
Dr. Ramaswami advised that appellant was unable to work for two weeks due to neck pain. In a

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July 2, 2007 prescription note, he advised that she was unable to work for two weeks due to a
neck injury and repeated this assessment on July 10, 2007. On July 31, 2007 Dr. Ramaswami
noted appellant’s complaints and diagnosed cervical spondylosis, disc disease, chronic muscle
spasm and cervicalgia. He advised that she was disabled due to persistent pain aggravated by her
work duties and opined that her work accident contributed to her neck dysfunction and disability.
Appellant filed claims for wage-loss compensation from June 9 to July 6, 2007. The
employing establishment controverted the claims, asserting that her disability began after a
predisciplinary interview prior to the June 11, 2007 notice of removal.
Appellant was treated by Dr. Johansson on July 3, 2007 for neck and arm pain and he
diagnosed cervicalgia, pain into the arms and low back pain radiating into the legs.
On August 16, 2007 Dr. Alfred Frontera, a Board-certified neurologist, noted in a work
capacity evaluation that appellant was unable to do repetitive work, including sorting mail. He
returned her to work four hours a day with restrictions. On September 20, 2007 Dr. Frontera
diagnosed cervical spondylosis and bilateral carpal tunnel syndrome. In an October 11, 2007
duty status report, he returned appellant to work full time with restrictions. On November 8,
2007 Dr. Frontera treated her and diagnosed cervical spondylosis aggravated by her June 2006
work injury.
The Office found a conflict in medical opinion between Dr. Ramaswami, appellant’s
physician, who stated that she was totally disabled and experiencing residuals of her workrelated injury, and Dr. Hughes, an Office referral physician, who determined that her workrelated injury had resolved and that she could return to work without restriction.
The Office referred appellant to Dr. Ira Neustadt, a Board-certified neurologist, selected
as the impartial medical specialist. In an October 30, 2007 report, Dr. Neustadt reviewed the
history of injury and medical treatment records. Appellant reported having tension headaches
two to three times a week that were often associated with diffuse soreness in the posterior
cervical spine, worse on the right. She described exacerbations of her condition on May 22,
2007 when she was sorting mail and on May 29, 2007 when she awoke with a major spasm in
her neck, shoulder girdle and mid-low back with tingling paresthesias in the arms and legs.
Dr. Neustadt advised that neurological examination was entirely normal and nonfocal.
Musculoskeletal examination showed normal lordotic curve of the cervical and lumbosacral
spine. There was no evidence of cervical, thoracic or lumbosacral spasm and neck range of
motion was fairly full with some soreness but no radicular pain. There was mild vertex scalp
tenderness consistent with tension headaches. Dr. Neustadt also noted subjective symptoms
without objective correlation. He diagnosed a mild head trauma, neck and shoulder girdle
trauma, by history. In the absence of objective findings, there was no objective evidence to
support disability stemming from appellant’s work accident. Appellant’s symptoms were
subjective and consisted of mild tenderness to palpation of the posterior cervical and upper
trapezius area consistent with residual strain. Dr. Neustadt opined that the incidents she
described on May 22 and 29, 2007 were not exacerbating events. He advised that, in the absence
of objective findings, there was no reason that appellant could not return to full duty without
restrictions.

4

In a December 14, 2007 decision, the Office denied appellant’s claims for recurrences of
disability finding that the weight of the medical evidence was represented by Dr. Neustadt who
found that she was not disabled. It also found that there was no change in the nature and extent
of her light-duty position.
Appellant requested an oral hearing which was held on April 11, 2008. On January 10,
2008 Dr. Frontera saw her in follow-up for neck pain and numbness down the right arm. He
diagnosed cervical spondylosis with neck pain related to her work injury, cervical muscle spaces
with decreased range of motion and carpal tunnel syndrome. Dr. Frontera stated that the
spondylosis was not caused by appellant’s injury but it aggravated her underlying latent
condition. On May 29, 2008 he noted that she returned to work full time with minimal pain.
Dr. Frontera diagnosed status post injury to the cervical spine on June 15, 2006 with resulting
muscle spasm to the neck, bilateral carpal tunnel syndrome and difficulty with memory.
In a July 2, 2008 decision, an Office hearing representative affirmed the
December 14, 2007 decision.
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that he cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.1
The Office’s implementing federal regulations define a recurrence of disability as the
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without intervening injury
or new exposure to the work environment.2
Causal relationship is a medical issue3 and the medical evidence required to establish a
causal relationship is rationalized medical evidence. Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.4
1

Terry R. Hedman, 38 ECAB 222 (1986).

2

20 C.F.R. § 10.5(x).

3

Mary J. Briggs, 37 ECAB 578 (1986).

4

Gary L. Fowler, 45 ECAB 365 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

5

ANALYSIS
The Office accepted appellant’s claim for a cervical sprain and postconcussion syndrome.
Appellant returned to a light-duty work full time. She filed claims for disability when she
stopped work on April 27, May 7, 23 and 29, 2007, alleging neck and trapezius pain after
performing limited duty which included sorting mail.
The Office determined that, a conflict in medical opinion arose between appellant’s
attending physician, Dr. Ramaswami, who found that she was disabled due to residuals of her
accepted condition, and Dr. Hughes, an Office referral physician, who found that she was fully
recovered from the work injury and could return to her date-of-injury job. It properly referred
her to Dr. Neustadt to resolve the conflict.5
In an October 30, 2007 report, Dr. Neustadt reviewed the history of appellant’s injury of
striking her head against a rafter and the accepted diagnoses of cervical strain and postconcussive
syndrome. He noted that there was no evidence that she lost consciousness and that a
computerized axial tomography scan obtained of the head was interpreted as normal. Appellant
also underwent additional diagnostic studies that established cervical spondylosis and stenosis
without a disc herniation or spinal compression. Degenerative changes were also reported at the
C4-5 level. Dr. Neustadt reviewed the treatment notes of record and addressed appellant’s
complaints of frequent headaches without nausea or visual problems. He noted that she claimed
that her condition was exacerbated while sorting mail and her belief that she was unable to lift.
Dr. Neustadt reported that appellant’s neurological examination was normal and nonfocal. He
reported normal lordotic curve of the cervical and lumbosacral spine with out evidence of any
spasm. Range of motion evaluation was fairly full in the cervical spine without radicular
symptoms reported. Dr. Neustadt found full range of motion to the shoulders with some reported
tenderness in the upper shoulder girdle. Given the absence of objective findings on examination,
he concluded that appellant was without any dysfunction from the accepted injury. Dr. Neustadt
described her symptoms on examination as subjective and consistent only with mild tenderness
to palpation of the cervical and upper trapezius region. He found no evidence to support that
appellant’s work in May 2007 had exacerbated her condition and advised that she could perform
full duty without any medical restrictions.
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.6
The Board finds that the opinion of Dr. Neustadt is sufficiently well rationalized and
based upon a proper factual background and review of the medical evidence of record. It is
entitled to special weight and establishes that appellant’s work-related condition ceased and that
she does not require ongoing work restrictions. Dr. Neustadt’s report does not establish that her
intermittent disability claimed commencing April 27, 2007 is causally related to the June 15,
2006 work injury. Based on his examination, he advised that the work appellant performed in
5

See 5 U.S.C. § 8123(a).

6

Aubrey Belnavis, 37 ECAB 206 (1985).

6

sorting mail was not sufficient to exacerbate her accepted medical conditions. Dr. Neustadt
reported an accurate medical and employment history and found that appellant was not disabled
due to the June 15, 2006 work injury. Accordingly, the Office properly accorded determinative
weight to the impartial medical opinion.
Appellant submitted treatment records from Dr. Ivashina, who did not support a
spontaneous recurrence of disability due to the accepted cervical sprain and postconcussive
syndrome. She noted that appellant attributed her disability and need for treatment to
exacerbations caused by new employment exposures in her work duties sorting mail.
Dr. Ivashina did not adequately describe how appellant’s disability for the dates claimed
pertained to a material change in the nature of appellant’s physical condition arising from the
employment injury.7 The April 18 and 30, 2007 duty status reports noted that appellant was able
to perform her usual job with restrictions. On April 30, 2007 Dr. Ivashina treated appellant for
neck and shoulder pain and diagnosed cervicalgia and headaches most likely of cervicogenic
origin. Appellant reported that sorting mail and performing other repetitive movements with her
arms resulted in neck and shoulder pain which caused her to leave work. Dr. Ivashina did not
explain whether the work appellant was performing was outside her physical limitations or
address how her disability related to the conditions accepted in this case as arising from the
June 15, 2006 injury. She failed to explain how appellant’s job duties would cause an
exacerbation of appellant’s accepted cervical sprain or postconcussion syndrome. This is
important as the diagnostic studies establish that appellant has degenerative cervical disease.
The reports from Dr. Ramaswami, who was on one side of the conflict that was resolved
by Dr. Neustadt, do not address any additional medical findings or provide further explanation of
how appellant’s disability was due to a spontaneous change in her accepted medical conditions.
The Board has generally held that additional reports from a physician who was on one side of a
medical conflict are insufficient, without additional rationale or medical findings, to overcome
the weight accorded the impartial medical examiner or to create a new conflict.8
Dr. Ramaswami’s reports are similar to those previous considered as giving rise to the conflict in
opinion. He did not provide additional rationalized opinion explaining the reasons how
appellant’s recurrent condition and disability was due to the accepted work injury.9 The reports
of Dr. Ramaswami noted her status and treatment. He did not note a particular change in the
nature of appellant’s physical condition arising from her employment injury which prevented her
from performing her light-duty position. For these reasons, Dr. Ramaswami’s reports are of
diminished probative value.
Dr. Johansson diagnosed cervicalgia, possible C5 radiculopathy and opined that
appellant’s mail sorting led to a relapses of pain. As noted, this does not implicate a spontaneous
change in the nature of the conditions accepted by the Office. It did not accept the conditions
diagnosed as related to the June 15, 2006 work injury. Dr. Johansson did not provide sufficient
7

See Katherine A. Williamson, 33 ECAB 1696 (1982); Arthur N. Meyers, 23 ECAB 111 (1971) (where the Board
has consistently held that contemporaneous evidence is entitled to greater probative value than later evidence).
8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008).

9

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

7

medical opinion explaining the reasons how appellant’s condition or disability for the dates
claimed was due to the accepted work injury.10 Dr. Frontera noted that appellant continued to
have neck pain and was unable to do repetitive work including sorting mail. He diagnosed
cervical spondylosis and bilateral carpal tunnel syndrome. However, Dr. Frontera failed to
address the specific dates of intermittent disability claimed or a particular change in the nature of
appellant’s accepted conditions.11 Therefore, these reports are insufficient to meet appellant’s
burden of proof.
The Board notes that the evidence does not substantiate a change in the nature and extent
of appellant’s light-duty requirements or that she was required to perform duties which exceeded
her medical restrictions. Appellant has not met her burden of proof to establish that there was a
change in the nature or extent of the injury-related condition or a change in the nature and extent
of the light-duty requirements.
On appeal, appellant asserts that, although she filed notices of recurrence of disability, the
Office failed to develop her claim as a new occupational disease. This aspect of her claim is not
before the Board in the present appeal. The Office adjudicated appellant’s claim for recurrences
of intermittent disability, the issue on appeal. With regard to conditions not accepted by the
Office as being employment related, she has the burden to provide rationalized medical evidence
sufficient to establish causal relation.12 The Board’s finding in this case does not preclude her
from pursuing that aspect of her claim before the Office.
CONCLUSION
The Board finds that appellant did not establish that she sustained recurrences of
intermittent disability causally related to her accepted condition.

10

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (the claimant bears the burden of proof
to establish that conditions not accepted by the Office are due to an employment injury through the submission of
rationalized medical evidence).
11

See supra note 7.

12

Alice J. Tysinger, 51 ECAB 638 (2000).

8

ORDER
IT IS HEREBY ORDERED THAT the July 2, 2008 decision of the Office of Worker’
Compensation Programs is affirmed.
Issued: August 5, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF THE ARMY, CHEMICAL
MATERIALS AGENCY, Tooele, UT, Employer
__________________________________________

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

Docket No. 18-0810
Issued: February 27, 2019

Case Submitted on the Record

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

JURISDICTION
On March 6, 2018 appellant filed a timely appeal from a November 8, 2017 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 his burden of proof to establish more than 29 percent
binaural hearing loss, for which he previously received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 18, 2015 appellant, then a 68-year-old retired diesel generator mechanic, filed an
occupational disease claim (Form CA-2) for employment-related bilateral hearing loss. He
indicated that he first became aware of his claimed condition in June 1975, and first realized it was
related to his federal employment in July 1984. Appellant had retired, effective April 3, 2007.3
By decision dated April 19, 2017, OWCP accepted his occupational disease claim for bilateral
sensorineural hearing loss and bilateral tinnitus.
On April 25, 2017 appellant filed a claim for a schedule award (Form CA-7).
In an October 23, 2015 report, Dr. Stewart E. Barlow, a Board-certified otolaryngologist
and OWCP referral physician, diagnosed bilateral sensorineural hearing loss and tinnitus, which
he attributed to appellant’s federal employment. Based on the results of an October 23, 2015
audiogram, he found 20.9 percent permanent binaural hearing impairment.4 Dr. Barlow also found
an additional one percent impairment due to tinnitus, for a total of 21.9 percent permanent binaural
hearing impairment pursuant to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides).5
A March 10, 2016 audiogram noted losses at the frequencies of 500, 1,000, 2,000, and
3,000 Hz. The right ear losses were recorded as 45, 30, 50, and 85 dBs. The left ear losses were
recorded as 40, 25, 30, and 60 dBs.6
In an April 19, 2017 report, Dr. Jeffrey M. Israel, a Board-certified otolaryngologist and
district medical adviser (DMA), noted that the results of the most recent audiogram, dated
March 10, 2016, were valid and representative of appellant’s hearing sensitivity. Based on this
study, he calculated 41.25 percent right monaural loss and 20.625 left monaural loss, which
2

Docket No. 16-1398 (issued December 19, 2016).

3
By decision dated November 2, 2015, OWCP denied appellant’s claim, finding that it was untimely pursuant to
5 U.S.C. § 8122. On March 19, 2016 appellant requested reconsideration of the November 2, 2015 decision. By
decision dated April 28, 2016, OWCP denied his March 19, 2016 request for reconsideration. Appellant appealed to
the Board. By decision dated December 19, 2016, the Board found that OWCP had improperly denied his request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). The Board noted that appellant had
submitted employing establishment hearing conservation records, which the Board determined were relevant and
pertinent to the timeliness issue. Therefore, the Board set aside the November 3, 2015 decision and remanded the
case to OWCP for consideration of the merits followed by a de novo decision.

Appellant’s October 23, 2015 audiogram noted losses at the frequencies of 500, 1,000, 2,000, and 3,000 Hertz
(Hz). The right ear losses were recorded as 50, 35, 45, and 80 decibels (dBs). The left ear losses were recorded as
35, 20, 30, and 60 dBs.
4

5

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

2

represented 24.1 percent permanent binaural loss. With respect to appellant’s tinnitus, Dr. Israel
noted that a recent tinnitus handicap inventory revealed a score of 82, which represented 5 percent
impairment for tinnitus. Therefore, appellant’s combined permanent binaural hearing loss was
29.1 percent. Dr. Israel found that he had reached maximum medical improvement (MMI) as of
March 10, 2016, which was the date of his latest audiogram.
By decision dated November 8, 2017, OWCP granted appellant a schedule award for 29
percent permanent binaural hearing loss. The award covered a 58-week period from March 10,
2016 to April 19, 2017.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.7 FECA, however,
does not specify the manner by which the percentage loss of a member, function or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. The implementing
regulations have adopted the A.M.A., Guides as the appropriate standard for evaluating schedule
losses.8 Effective May 1, 2009, schedule awards are determined in accordance with the sixth
edition of the A.M.A., Guides.9
Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each frequency are
added up and averaged.10 Then, the “fence” of 25 dBs is deducted because, as the A.M.A., Guides
points out, losses below 25 dBs result in no impairment in the ability to hear everyday speech
under everyday conditions.11 The remaining amount is multiplied by a factor of 1.5 to arrive at
the percentage of monaural hearing loss.12 The binaural loss is determined by calculating the loss
in each ear using the formula for monaural loss; the lesser loss is multiplied by five, and then added
to the greater loss and the total is divided by six to arrive at the amount of the binaural hearing
loss.13

7
For complete loss of hearing of one ear, an employee shall receive 52 weeks’ compensation. 5 U.S.C.
§ 8107(c)(13). For complete loss of hearing of both ears, an employee shall receive 200 weeks’ compensation. Id.
8

20 C.F.R. § 10.404.

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6a (March 2017).
10

See Section 11.2, Hearing and Tinnitus, A.M.A., Guides 248-51 (6th ed. 2009).

11

Id. at 250.

12

Id. at 250-51.

13

Id. at 251.

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Regarding tinnitus, the A.M.A., Guides provides that tinnitus is not a disease, but rather a
symptom that may be the result of disease or injury.14 If tinnitus interferes with activities of daily
living, including sleep, reading (and other tasks requiring concentration), enjoyment of quiet
recreation, and emotional well being, up to five percent may be added to a measurable binaural
hearing impairment.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than 29
percent binaural hearing loss, for which he previously received a schedule award.
In an April 19, 2017 narrative report, Dr. Israel, the DMA, noted that based on the
March 10, 2016 audiogram performed on behalf of the second opinion specialist, Dr. Barlow,
appellant’s right ear hearing losses at 500, 1,000, 2,000, and 3,000 Hz were 45, 30, 50, and 85 dBs,
which totaled 210 dBs. His left ear losses were 40, 25, 30, and 60 dBs, which totaled 155 dBs.
The right ear hearing loss resulted in an average loss of 52.5 (210 ÷ 4) dBs, and the left ear loss
averaged 38.75 (155 ÷ 4) dBs. After subtracting the 25 dB fence, the right ear loss was 27.5, and
when multiplied by 1.5, represented 41.25 percent monaural loss. Applying the same formula to
the left ear (38.75 – 25 = 13.75 x 1.5) resulted in 20.625 percent monaural loss. The DMA then
applied the appropriate formula to convert the left and right monaural losses to a binaural loss of
24.1 percent.16 He then added the maximum 5 percent impairment for tinnitus for a total,
permanent binaural hearing loss of 29.1 percent, which OWCP properly rounded down to 29
percent.17 The Board finds that there is no current medical evidence of record supporting that
appellant has a greater hearing loss than previously awarded.
On appeal appellant challenges the period of the schedule award, noting that it “did not
match up with his injury date.” As noted, OWCP found 29 percent binaural hearing loss and
properly calculated that he was entitled to 58 weeks of compensation.18 Schedule awards begin
on the date of MMI, unless circumstances show a later date should be used.19 The question of
when MMI has been reached is a factual one that depends upon the medical findings in the record.20
In the absence of evidence to the contrary, the date of MMI is usually considered to be the date of

14

See A.M.A., Guides 249 (6th ed. 2009).

15

Id.; see also R.H., Docket No. 10-2139 (issued July 13, 2011).

16

Dr. Israel multiplied the lesser loss of 20.63 percent monaural hearing loss for the left ear by 5, added the 41.25
percent right ear monaural hearing loss, and divided the total by 6.
17
Supra note 9, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3b (January 2010) (results should be rounded
down for figures less than .5 and up for .5 and over).
18

See supra note 7 (0.29 x 200 weeks’ compensation = 58 weeks).

19

Supra note 9, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.7b
(March 2017).
20

L.H., 58 ECAB 561, 563 (2007).

4

the evaluation that is accepted as definitive by OWCP.21 In this instance, OWCP based the
schedule award on the results of appellant’s March 10, 2016 audiogram, and therefore, properly
found that he reached MMI by that date. Accordingly, the 58-week period of the schedule award
commenced on March 10, 2016.22
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 did not met his burden of proof to establish greater than 29
percent binaural hearing loss, for which he previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the November 8, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 27, 2019
Washington, DC

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

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

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

21

See supra note 17 at Chapter 3.700.3a(1)(c).

22

See supra note 19.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE ARMY, PETERSON
AIR FORCE BASE, Colorado Springs, CO,
Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1756
Issued: February 11, 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 11, 1008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 29, 2008 merit decision denying her claim as untimely filed.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over this case.
ISSUE
The issue is whether appellant’s claim for compensation is barred by the applicable time
limitation provisions of the Federal Employees’ Compensation Act.
FACTUAL HISTORY
On January 24, 2007 appellant, a 61-year-old contract specialist, filed an occupational
disease claim, alleging that she developed anxiety, depression and pain syndrome as a result of

discrimination in the workplace.1 She stated that she first realized that her condition was caused
or aggravated by her employment on May 1, 2004. The official supervisor’s report reflects that
appellant first reported the condition to the employing establishment on January 24, 2007. The
record reflects that appellant last worked at the employing establishment on December 17, 2003.
In a statement dated February 21, 2007, appellant alleged that the employing
establishment discriminated against her in October 2001, when it improperly refused to promote
her to the position of team leader. Based on the employing establishment’s action, she filed an
Equal Employment Opportunity (EEO) complaint, resulting in an August 25, 2004 decision,
which found that the employing establishment engaged in unlawful discrimination when it failed
to promote her to lead contract specialist. Appellant stated that she experienced severe
emotional distress as a result of the employing establishment’s discriminatory action and the
effects of the May 4, 2004 hearing and subsequent EEO decision. She alleged that she
experienced stress as a result of work responsibilities, stating that she struggled to meet contract
deadlines from November 2001 to 2002. Appellant noted that her heavy workload included
making all changes in existing contracts and awarding new contracts. It required her to work
overtime two to three days per week and that, by December 2003, she had accrued 240 hours of
annual leave and 100 hours of compensatory time.
On March 15, 2007 the employing establishment controverted appellant’s claim on the
grounds that it was untimely, noting that it was filed more than three years after her last exposure
to the alleged discrimination on December 17, 2003, the date she stopped working. The
employing establishment contended that appellant and her physicians acknowledged that she had
experienced anxiety, stress and reactive depression as a result of employment discrimination
since at least May 30, 2002, when she was treated by Dr. J.S. Evans, a clinical psychologist.2
In an undated statement, appellant reiterated her claim of discrimination. She also stated
that she had been overworked due to numerous contract modifications and required research
from November 2001 to 2002.
Appellant alleged that, from January 2002 through
December 2003, she was required to work overtime and weekends, as she struggled to meet
deadlines.
By decision dated June 13, 2007, the Office denied appellant’s claim on the grounds that
it was not timely filed. It advised appellant that the date of injury was the date of her last
occupational exposure, December 17, 2003, her last day of employment and that she should have
been aware of a relationship between her employment and the claimed condition by that date.
As her claim was filed on January 24, 2007, more than three years after the date of injury, the
Office found that it was untimely filed. It further found that there was no evidence that her
supervisor had actual knowledge of her alleged condition within 30 days.
1

Although the Form CA-2 was signed and dated on or about December 13, 2006 (the exact date is illegible), it
was not delivered to appellant’s supervisor until January 24, 2007. In a November 28, 2007 statement, appellant’s
representative acknowledged that the claim was filed on January 24, 2007.
2

In notes dated May 30, 2002, Dr. Evans stated that appellant continued to verbalize a great deal of anger over
her treatment and place of employment by her prior supervisor and that she talked openly about the possibility of
obtaining a stress-related medical retirement.

2

In an undated statement, appellant indicated that, in June 2003, she had a telephone
conversation with Matt Hass at the Office. She stated that she told Mr. Hass that she was
experiencing stress related to the EEO complaint she filed on June 3, 2002 and that her doctor
had informed her that the stress and depression of the work environment were aggravating her
pain issues. Appellant alleged that she was told that she could have a legitimate claim for stress
in the workplace, but that “it wasn’t really relevant because [she] was receiving Workmen’s
Comp for a physical complaint.”
On July 3, 2007 appellant requested an oral hearing, which was held on
November 28, 2007. Appellant’s representative contended that her claim was filed in a timely
fashion, as the substance of the claim could be deduced from a document filed on September 18,
2006 in File No. xxxxxx084, which requested that her emotional condition be accepted in that
case as a consequential condition.3 He argued that appellant had provided actual notice to her
supervisor within 30 days of the alleged discrimination. Appellant testified that, at the time she
filed her EEO claim in June 2002, she told Kim Diercks, her first-line supervisor, that she had
been injured due to discrimination. She also alleged that she told Sergeant Chuck Pollard and
Sergeant Jenkins and Larry Ozburn, team leaders, that she experienced stress due to the
employing establishment’s failure to promote her and other workplace discrimination.
The record contains a September 18, 2006 letter to the Office from appellant’s
representative, responding to the Office’s proposed notice of termination of benefits in File No.
xxxxxx084. The representative asked the Office “to accept depression due to the on-the-job
injury and the matters raised in her EEO complaint,” contending that “where a work injury and
discrimination based on national origin and race are inextricably inter-related, discrimination
must be considered as a job factor.”
On December 31, 2007 the employing establishment disputed appellant’s contention that
she had provided actual notice of her injury to her supervisors. It provided statements from
individuals identified by appellant as having received such notice, which contradicted her
allegations. On December 29, 2007 Mr. Pollard denied that appellant ever notified him that her
medical problems were the result of discriminatory practices within the organization. On
December 22, 2007 Greg Jensen, a manager, Contracts Inspection, stated that he was aware that
appellant missed work due to back pain, but did not remember being told of medical
appointments related to psychiatric, psychological or other medical services outside the realm of
her back pain. On December 21, 2007 Ms. Diercks stated that she was not aware that appellant
was experiencing perceived work-related stress until the filing of her CA-2. On December 28,
2007 Mr. Ozburn indicated that, although he occasionally signed leave slips for appellant, he did
not know why she went to the doctor and was not aware of any medical problem other than the
accepted back condition.

3

Appellant sustained an October 19, 1999 injury, which was accepted for neck strain, lumbar strain and thoracic
and lumbar neuritis. (File No. xxxxxx084) By decision dated October 11, 2006, the Office terminated appellant’s
compensation benefits effective October 28, 2006. On April 12, 2007 an Office hearing representative affirmed the
Office’s decision. On October 2, 2008 the Board affirmed the Office’s termination of compensation benefits.
(Docket No. 07-1899, issued October 2, 2008)

3

By decision dated May 29, 2008, the Office hearing representative affirmed the June 13,
2007 decision. The representative found that appellant’s claim was untimely and that her
supervisor did not have actual notice of injury within 30 days.
LEGAL PRECEDENT
In cases of injury on or after September 7, 1974, section 8122(a) of the Act4 provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death. Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 of this title was
given within 30 days.”5
Section 8119 provides that a notice of injury or death shall: be given within 30 days after
the injury or death; be given to the immediate superior of the employee by personal delivery or
by depositing it in the mail properly stamped and addressed; be in writing; state the name and
address of the employee; state the year, month, day and hour when and the particular locality
where the injury or death occurred; state the cause and nature of the injury or, in the case of
death, the employment factors believed to be the cause; and be signed by, and contain the
address of, the individual giving the notice.6 Actual knowledge and written notice of injury
under section 8119 serve to satisfy the statutory period for filing an original claim for
compensation.7
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware, or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability. The
Board has held that the applicable statute of limitations commences to run although the employee
does not know the precise nature of the impairment.8 In order to establish that a supervisor had
actual knowledge, an employee must show not only that the immediate superior knew that he or
she was injured, but also knew or reasonably should have known that it was an on-the-job
injury.9
4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8122(a).

6

5 U.S.C. § 8119; Larry E. Young, 52 ECAB 264 (2001).

7

Laura L. Harrison, 52 ECAB 515 (2001).

8

Delmont L. Thompson, 51 ECAB 155 (1999).

9

5 U.S.C. § 8122(b); Duet Brinson, 52 ECAB 168 (2000).

4

In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between her condition and her employment. When an employee becomes aware or reasonably
should have been aware that she has a condition which has been adversely affected by factors of
her federal employment, such awareness is competent to start the limitation period even though
the employee does not know the precise nature of the impairment or whether the ultimate result
of such affect would be temporary or permanent.10 Where the employee continues in the same
employment after she reasonably should have been aware that she has a condition which has
been adversely affected by factors of federal employment,11 the time limitation begins to run on
the date of the last exposure to the implicated factors.12 The requirement to file a claim within
three years is the claimant’s burden and not that of the employing establishment.13
ANALYSIS
The Board finds that appellant did not timely file a claim for compensation under the Act.
The time for filing a claim begins to run when the employee first becomes aware or
reasonably should have been aware, of a possible relationship between her condition and her
employment. Where the employee continues in the same employment after she reasonably
should have been aware that she has a condition which has been adversely affected by factors of
federal employment,14 the time limitation begins to run on the date of the last exposure to the
implicated factors.15 Appellant stated on her CA-2 that she did not become aware that her
condition was related to her employment until May 1, 2004. However, the evidence of record
establishes that appellant knew or reasonably should have known, of a relationship between her
alleged condition and factors of her employment as early as 2002.
Appellant alleged that the employing establishment discriminated against her in October
2001 when it improperly refused to promote her to the position of team leader. The Board notes
that she filed an EEO complaint in June 2002 related to the alleged discrimination. Appellant
also alleged that she had been overworked due to numerous contract modifications and required
research, beginning in 2001 and experienced stress as she struggled to meet deadlines until she
left the employing establishment on December 17, 2003. On May 30, 2002 Dr. Evans stated that
appellant continued to verbalize a great deal of anger over discriminatory treatment at her place
of employment and that she talked openly about the possibility of obtaining a stress-related
medical retirement. In an undated statement, appellant reported that, in June 2003, she had
10

Larry E. Young, supra note 6.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993); see James A.
Sheppard, 55 ECAB 515 (2004).
12

Id.

13

Debra Young Bruce, 52 ECAB 315 (2001).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993); see
James A. Sheppard, supra note 11.
15

Id.

5

informed Office that she suffered from job-related stress. This evidence is sufficient to establish
that appellant was aware or by the exercise of reasonable diligence should have been aware of
the causal relationship between appellant’s emotional condition and her employment by June
2002.
In discussing the degree of knowledge required by the employee prior to filing a claim,
the Board has emphasized that she need only be aware of a possible relationship between her
condition and her employment to commence the statute of limitations. The Board has not
required that appellant have definitive evidence of a condition and causal relationship on the date
the claim is filed.16 Appellant experienced and was treated for stress during her period of
employment, which she attributed to discriminatory treatment and overwork. Although she may
have had some doubt as to a definitive diagnosis, the Board finds that she knew or reasonably
should have known, of a relationship between her condition and her employment by the date of
her last exposure on December 17, 2003.
On appeal, appellant contends that counsel’s September 18, 2006 letter to the Office, in
appellant’s 1999 traumatic injury case, constituted timely filing of her occupational disease
claim. In the September 18, 2006 letter, appellant’s representative asked the Office “to accept
depression due to the on-the-job injury and the matters raised in her EEO complaint,” contending
that “where a work injury and discrimination based on national origin and race are inextricably
inter-related, discrimination must be considered as a job factor.” Office procedures require a
claimant to show sufficient cause for the Office to proceed with processing and adjudicating a
claim.17 In occupational disease cases where the claim is not based on a specific incident, the
claimant must also submit sufficient evidence to identify fully the particular work conditions
alleged to have caused the disease.18 The representative’s September 18, 2006 letter does not
identify any specific work conditions alleged to have cause appellant’s disease. While the letter
refers generally to matters rose in her EEO complaint, its contents are insufficient to establish a
claim for compensation.
As noted, the evidence establishes that appellant should have known of a causal
relationship between her emotional condition and her employment before she stopped working.
Therefore, the time limitations began to run on December 17, 2003, appellant’s last day of work
and exposure to the implicated employment factors.19 Since appellant did not file a claim until
January 24, 2007, her claim was filed outside the three-year limitation period.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of the Act if
her immediate supervisor had actual knowledge of the injury within 30 days of her last exposure
to the implicated employment factors on December 17, 2003.20 Additionally, the claim would be
16

See Edward Lewis Maslowski, 42 ECAB 839 (1991). See also William A. West, 36 ECAB 525 (1985).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Responsibilities, Chapter 2.800.3(a) (April, 1993).

18

Id.

19

See supra note 14.

20

Larry E. Young, supra note 6. See Federal (FECA) Procedure manual, Part 2 -- Claims, Time, Chapter 2.801.3
(March 1993).

6

deemed timely if written notice of injury had been provided within 30 days pursuant to 5 U.S.C.
§ 8119.21 The employing establishment disputed appellant’s claim that appellant provided actual
notice of her condition to her supervisors, and provided statements from individuals identified by
appellant as having received such notice which contradicted her allegations. There is no other
evidence of record supporting appellant’s allegation that she provided written notice of injury
prior to January 24, 2007, the date she filed her claim or that her immediate supervisor had actual
knowledge of her alleged emotional condition.
CONCLUSION
The Board finds that appellant’s claim for compensation is barred by the applicable time
limitation provisions of the Act.
ORDER
IT IS HEREBY ORDERED THAT the May 29, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.

Issued: February 11, 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

21

5 U.S.C. §§ 8122(a).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Charleston, SC, Employer
__________________________________________

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

Docket No. 10-976
Issued: December 1, 2010

Case Submitted on the Record

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

JURISDICTION
On February 23, 2010 appellant filed a timely appeal from a November 20, 2009 decision
of the Office of Workers’ Compensation that denied his request for reconsideration because it
was untimely filed and did not establish clear evidence of error. The last merit decision by the
Office was issued on October 1, 2008. As there is no merit decision within one year of the filing
of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim.1 Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the October 30, 2009
decision.

1

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to
the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error. On
appeal, appellant asserts that the Office erred in denying his claim because at the time of the
denial he had not been properly diagnosed and because of that he was not competent to proceed
with his case.
FACTUAL HISTORY
On August 14, 2008 appellant, then a 44-year-old patient services supervisor, filed a
traumatic injury claim alleging that on June 3, 2008 stress, anxiety, distrust, depression and
uncontrollable anger were caused by slanderous lies and rumors being spread by coworkers. He
stopped work that day. By letter dated August 26, 2008, the Office informed appellant of the
type of evidence needed to support his claim, including a statement of specific details regarding
the slanderous rumors alleged to have caused the claimed condition, the names of the employees
alleged to have spread the rumors, and a physician’s opinion explaining how the reported work
incident caused or aggravated the claimed injury. Appellant was given 30 days to respond.
By decision dated October 1, 2008, the Office noted that appellant had not responded to
the August 26, 2008 letter and denied the claim. On October 30, 2009 appellant requested
reconsideration and submitted additional evidence. He stated that he was given no guidance by
the employing establishment as to what was needed to be successful in gaining acceptance of his
claim and that he was too emotionally distressed to provide information earlier. Appellant
provided correspondence to the employing establishment protesting its request for medical
information. In an April 7, 2009 report, Dr. Peter J. Sukin, a Board-certified psychiatrist,
advised that appellant was being treated for severe major depression, had become very
withdrawn and was too ill to work. In an April 24, 2009 report, Robert D. Cowley, Psy.D., noted
appellant’s report that on or about June 3, 2008 he learned that two female coworkers had started
an untrue rumor concerning his sexual orientation and health status and that the rumors spread
quickly which negatively impacted him. Dr. Cowley stated that on September 24, 2008 he
conducted an intake interview and found appellant to be suffering from apparent anxiety and
depressive disorders, stating that subsequent testing confirmed the diagnoses. He then issued a
duty to warn letter to the employing establishment because he feared for appellant’s safety and
that of the two coworkers. Dr. Cowley diagnosed major depressive disorder, recurrent severe,
with psychotic features; post-traumatic stress disorder, severe and delusional disorder. He
advised that appellant had been irreversibly harmed by the experience and advised that he should
not return to a workplace where either of the women worked and would likely suffer mental
illness for the rest of his life. On October 21, 2009 appellant was granted disability retirement
for major depression by the Office of Personnel Management.
By decision dated November 20, 2009, the Office denied appellant’s reconsideration
request on the grounds that it was untimely filed and failed to establish clear evidence of error.

2

LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.2 It
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.3 When an application for review is untimely,
the Office undertakes a limited review to determine whether the application presents clear
evidence that the Office’s final merit decision was in error.4 Office procedures state that the
Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in section 10.607 of the Office regulations,5 if the claimant’s application for
review shows “clear evidence of error” on the part of the Office. In this regard, the Office will
limit its focus to a review of how the newly submitted evidence bears on the prior evidence of
record.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
decided by the Office. The evidence must be positive, precise and explicit and must manifest on
its face that the Office committed an error. Evidence which does not raise a substantial question
concerning the correctness of the Office’s decision is insufficient to establish clear evidence of
error. It is not enough to merely show that the evidence could be construed so as to produce a
contrary conclusion. This entails a limited review by the Office of how the evidence submitted
with the reconsideration request bears on the evidence previously of record and whether the new
evidence demonstrates clear error on the part of the Office. To show clear evidence of error, the
evidence submitted must be of sufficient probative value to shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of the Office decision.7
Office procedures note that the term “clear evidence of error” is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that the Office
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.8 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of the Office.9

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.607(b); see Gladys Mercado, 52 ECAB 255 (2001).

4

Cresenciano Martinez, 51 ECAB 322 (2000).

5

Id.

6

Alberta Dukes, 56 ECAB 247 (2005).

7

Robert G. Burns, 57 ECAB 657 (2006).

8

James R. Mirra, 56 ECAB 738 (2005).

9

Nancy Marcano, 50 ECAB 110 (1998).

3

ANALYSIS
The Board finds that as, more than one year had elapsed from the date of issuance of the
merit decision in this case on October 1, 2008, appellant’s request for reconsideration on
October 30, 2009, was untimely filed.10 Consequently, appellant must demonstrate clear
evidence of error by the Office in denying his claim for disability compensation.11
The Board also finds that appellant failed to establish clear evidence that the October 1,
2008 decision of the Office was in error. The merit issue in this case is whether appellant
established that he had an emotional condition causally related to factors of his federal
employment. In the October 1, 2008 merit decision, the Office denied his claim on the grounds
that he submitted insufficient evidence to support his claim and did not respond to the Office’s
August 26, 2008 letter asking that he submit evidence including a statement describing the
alleged employment incident and a medical opinion explaining how the claimed incident caused
his condition.
Medical evidence submitted subsequent to the October 1, 2008 decision consists of the
April 14, 2009 report of Dr. Cowley and the April 7, 2009 report of Dr. Sukin. Each of these
reports confirms in significant detail that appellant suffered severe psychiatric conditions that
were allegedly the result of some very ugly rumors in his workplace. The unfortunate
circumstance of this case, however, is that appellant’s claim was untimely filed. If this evidence
had been submitted in a timely fashion it may have been sufficient to establish a prima facie case
of his claim.12 This same evidence, however, is not sufficient under the more stringent standard
of review for untimely filed claims. When the Office denied appellant’s claim on October 1,
2008, it based is decision on the evidence in the record. At that time, there was no evidence
supporting the claim. Although the Office provided appellant time to further support his claim,
no information or evidence was provided prior to its decision. Accordingly, the Board finds the
Office properly denied his request for reconsideration as untimely filed and failing to establish
clear evidence of error.
Regarding appellant’s general assertion that the employing establishment did not help
him with his claim, an employee seeking benefits under the Act has the burden of establishing to
essential elements of his or her claim.13 With regard to his argument on appeal that his claim
was prematurely denied because he had not been diagnosed, as noted above, he was provided an
opportunity to respond to the Office’s August 26, 2008 letter asking for further evidence. While
appellant apparently did not see Dr. Cowley until September 24, 2008, that was well within the

10

Supra note 3.

11

Id.

12

See D.R. 61 ECAB ___ (Docket No. 09-1723, issued May 20, 2010).

13

L.A., 58 ECAB 630 (2007).

4

time frame that appellant could have timely requested reconsideration of the October 1, 2008
decision and submitted the report for consideration.14
Appellant also asserted that he was mentally incapable of submitting the evidence
requested by the Office in its August 26, 2008 letter. In support of this argument, he relied on
the reports from Dr. Sukin and Dr. Cowley. Dr. Sukin noted that appellant was being treated for
depression, had become very withdrawn and was too ill to work. However, he did not indicate
that appellant’s condition rendered him mentally incompetent. Likewise, while Dr. Cowley
provided a lengthy statement regarding appellant’s allegations that coworkers spread rumors and
diagnosed a major depressive disorder, post-traumatic stress disorder and delusional disorder, he
too did not indicate that appellant was rendered mentally incompetent by the diagnosed
conditions. Thus, neither report supports appellant’s argument that his medical condition
prevented him from filing a timely report and does not establish clear evidence of error.15
Moreover, the Office clearly informed appellant of his obligation to furnish a statement
describing the claimed workplace incident. Appellant did not do so prior to October 1, 2008
when the Office issued the merit decision and did not do so with his October 30, 2009
reconsideration request. It has long been held that to establish a claim for an employment-related
emotional condition, an employee must submit factual evidence identifying employment factors
or incidents alleged to have caused or contributed to his condition.16
The term “clear evidence of error” is intended to represent a difficult standard, and the
medical evidence and argument provided here are not the type of positive, precise and explicit
evidence which manifested on its face that the Office committed an error.17 As the evidence and
argument submitted are of insufficient probative value to shift the weight in favor of appellant
and raise a substantial question as to the correctness of the October 1, 2008 Office decision,
appellant has not established that the Office committed error by its October 1, 2008 decision.18
The Board, therefore, finds that in accordance with its internal guidelines and with Board
precedent, the Office properly performed a limited review of the evidence and argument
submitted by appellant with his October 30, 2009 reconsideration request to ascertain whether it
14

Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with discretionary authority to
determine whether it will review an award for or against compensation, either under its own authority or on
application by a claimant. 5 U.S.C. § 8128(a). Section 10.608(a) of the Code of Federal Regulations provides that a
timely request for reconsideration may be granted if the Office determines that the employee has presented evidence
and/or argument that meets at least one of the standards described in section 10.606(b)(2). This section provides
that the application for reconsideration must be submitted in writing and set forth arguments and contain evidence
that either: (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. 20 C.F.R. § 10.606(b)(2). Section 10.608(b) provides that, when
a request for reconsideration is timely but fails to meet at least one of these three requirements, the Office will deny
the application for reconsideration without reopening the case for a review on the merits. 20 C.F.R. §10.608(b).
15

A.F., 59 ECAB 714 (2008).

16

Leslie C. Moore, 52 ECAB 132 (2000).

17

Id.

18

Nancy Marcano, supra note 9.

5

demonstrated clear evidence of error in the October 1, 2008 decision and correctly determined
that it did not and thus denied appellant’s untimely request for a merit reconsideration on that
basis.19
CONCLUSION
The Board finds that, as appellant’s October 30, 2009 reconsideration request was not
timely filed and failed to establish clear evidence of error, the Office properly denied a merit
review of his claim by its November 20, 2009 decision.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

19

20 C.F.R. § 10.607(b); see D.G., 59 ECAB 455 (2008).

6