United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

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

Docket No. 08-1370
Issued: December 2, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 8, 2008 appellant filed a timely appeal from the August 14, 2007 merit decision
of the Office of Workers’ Compensation Programs, which denied his claim for compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case. The Board also has jurisdiction to review the Office hearing representative’s March 11,
2008 nonmerit decision finding that appellant abandoned his request for a hearing.
ISSUES
The issues are: (1) whether appellant sustained an emotional injury in the performance of
duty on December 7, 2006; and (2) whether appellant abandoned his request for an oral hearing
before an Office hearing representative.
FACTUAL HISTORY
On May 14, 2007 appellant, then a 41-year-old building equipment mechanic, filed a
claim alleging that he sustained a traumatic emotional injury on December 7, 2006 when his
manager did not allow him legal representation during an interrogation by postal inspectors. He

added that the inspectors would not stop the interview.1 The Office asked appellant to submit a
statement detailing the incident and a medical report addressing his disability and causal
relationship.
Memoranda from the U.S. Postal Service Office of Inspector General (OIG) stated that a
forensic analysis of the employer’s computer hard drives revealed that appellant had purchased
controlled substances online, lawful possession of which required a valid prescription from a
licensed physician. On December 7, 2006 appellant’s manager told him to report to work and
that he could not bring his lawyer with him. Once at work, appellant was represented by two
union officials during an interview by the OIG. He was given a Kalkines Warning and signed a
statement acknowledging his rights during the inquiry into possible administrative misconduct.
The employer stated that appellant did not ask for the interview to be stopped. An OIG
memorandum of the interview appears in the record.
On August 9, 2007 Dr. James M. Sims, the attending psychiatrist, related appellant’s
history. He noted that appellant complained of harassment by his supervisor and other
employees. Dr. Sims did not address the December 7, 2006 OIG interview. He originally
diagnosed adjustment disorder with mixed emotional features but was now considering a
psychotic disorder, not otherwise specified. As appellant had no history of psychiatric problems,
Dr. Sims concluded that appellant’s “job and the stresses involved in that” were direct
contributors to his current condition.
In a decision dated August 14, 2007, the Office denied appellant’s claim for
compensation. It found that the evidence was insufficient to establish that the incident occurred
as alleged. The Office also found that there was no medical evidence providing a diagnosis that
could be connected to the incident alleged.
On September 11, 2007 appellant requested an oral hearing before an Office hearing
representative. On January 14, 2008 the Office notified him that his hearing was scheduled for
February 13, 2008 at the U.S. Federal Building in Little Rock.
In a decision dated March 11, 2008, the Office hearing representative found that
appellant had abandoned his request for an oral hearing. The hearing representative found that
appellant received written notice in advance but failed to appear. The hearing representative also
found no evidence that appellant contacted the Office either prior to or subsequent to the
scheduled hearing to explain his failure to appear.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.2 When
1

On appeal, appellant explains that he has connected claims, including an occupational disease claim under
OWCP File No. xxxxxx005, but that his claim under OWCP File No. xxxxxx019, currently before the Board is for a
traumatic injury on December 7, 2006.
2

5 U.S.C. § 8102(a).

2

an employee experiences emotional stress in carrying out his employment duties or has fear and
anxiety regarding his ability to carry out his duties and the medical evidence establishes that the
disability resulted from his emotional reaction to such situation, the disability is generally
regarded as due to an injury arising out of and in the course of employment. This is true when
the employee’s disability resulted from his emotional reaction to a special assignment or
requirement imposed by the employing establishment or by the nature of his work. By contrast,
there are disabilities having some kind of causal connection with the employment that workers’
compensation does not cover because they are not found to have arisen out of employment, such
as when disability results from an employee’s fear of a reduction-in-force or frustration from not
being permitted to work in a particular environment or to hold a particular position.3
Workers’ compensation does not cover an emotional reaction to an administrative or
personnel action unless the evidence shows error or abuse on the part of the employing
establishment.4 As a rule, however, a claimant’s allegations alone are insufficient to establish a
factual basis for an emotional condition claim.5 Mere perceptions and feelings of harassment or
discrimination will not support an award of compensation. The claimant must substantiate such
allegations with probative and reliable evidence.6 The primary reason for requiring factual
evidence from the claimant in support of his allegations of stress in the workplace is to establish
a basis in fact for the contentions made, as opposed to mere perceptions of the claimant, which in
turn may be fully examined and evaluated by the Office and the Board.7
ANALYSIS -- ISSUE 1
Appellant filed a claim attributing his emotional reaction on December 7, 2006 to the
conduct of his employer. As a rule, such an emotional reaction falls outside the scope of the Act.
There is only one exception that can bring this claim within the scope of coverage: appellant
must submit probative evidence establishing that the employer’s conduct towards him on
December 7, 2006 was erroneous or abusive. He has submitted no such evidence.
Appellant contended that he sustained a traumatic injury on December 7, 2006, when his
manager denied him a lawyer during the OIG interrogation. The evidence supports this
allegation. According to a statement from the employer, appellant’s manager asked him to come
to work on December 7, 2006 and told him he could not bring his lawyer with him. However,
appellant submitted no evidence to establish that this was erroneous. Appellant submitted
3

Lillian Cutler, 28 ECAB 125 (1976).

4

Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566, 572-73 (1991).

5

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).
6

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
7

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

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nothing to establish that he had a right to have an attorney present during the interview, which
was an inquiry into his possible administrative misconduct as an employee and which did not
involve allegations of criminal conduct or the threat of criminal prosecution. Without a showing
that he did, in fact, have the right to have an attorney present, the mere fact that appellant’s
manager told him he could not bring his lawyer is no basis to support a finding of error or abuse
by the manager.
Appellant also alleged that the inspectors would not stop the interview, but the record
does not support this allegation. The employer denied that appellant asked for the interview to
be stopped and the OIG memorandum of the interview supports the employer’s account of
events. The Board therefore finds that the weight of the factual evidence does not support that
the incident occurred as alleged, much less that it demonstrated error or abuse by the employer.
Appellant failed to submit probative evidence, prior to the Office’s August 14, 2007
decision on his claim, showing error or abuse by the employer on December 7, 2006. The Board
therefore finds that he has not met his burden of proof to establish that he sustained an emotional
injury in the performance of duty that day. Because the evidence before the Office failed to
demonstrate that his claim fell within the scope of the Act, the Board will affirm the Office’s
August 14, 2007 decision denying his claim for compensation benefits.8
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides the right to a hearing before an Office hearing
representative:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”9
Chapter 2.1601.6.e (1) of the Office’s Procedure Manual explains when an employee is
considered to have abandoned his hearing request:
“A hearing can be considered abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not
requested a postponement; the claimant has failed to appear at a scheduled
hearing; and the claimant has failed to provide any notification for such failure
within 10 days of the scheduled date of the hearing.

8

The record contains much evidence submitted after the Office’s August 14, 2007 decision. However, the
Board’s review of a case is limited to the evidence in the case record that was before it at the time of its final
decision. Evidence not before the Office will not be considered by the Board for the first time on appeal. 5 U.S.C.
§ 501.2(c)(1).
9

5 U.S.C. § 8124(b)(1).

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“Under these circumstances, H&R [Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the DO [District Office].”10
ANALYSIS -- ISSUE 2
Following the Office’s August 14, 2007 decision denying his claim for compensation,
appellant requested an oral hearing before an Office hearing representative. On January 14, 2008
the Office notified appellant that his hearing was scheduled for February 13, 2008 at the U.S.
Federal Building in Little Rock. Appellant did not request a postponement, he failed to appear at
the scheduled hearing and he failed to provide any notification for such failure within 10 days of
the scheduled date of the hearing. As all three of the conditions for abandonment are met, the
Board finds that appellant abandoned his request for an oral hearing. The Board will therefore
affirm the hearing representative’s March 11, 2008 decision.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an emotional injury in the performance of duty on December 7, 2006. The Board also
finds that appellant abandoned his request for an oral hearing before an Office hearing
representative.
ORDER
IT IS HEREBY ORDERED THAT the March 11, 2008 and August 14, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 2, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6.e (1) (January 1999).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPATMENT OF COMMERCE, REGIONAL
CENSUS CENTER -- Boston, MA, Employer
__________________________________________

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

Docket No. 13-1797
Issued: January 28, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On July 20, 2013 appellant filed a timely appeal from a January 22, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant is entitled to compensation for disability from July 24,
2010 through March 18, 2011 causally related to his accepted employment injuries.
On appeal, appellant contends that he was discharged from the rehabilitation center on
July 23, 2010 and continued to see specialists and be attended to by his son, a firefighter and
paramedic, for his accepted employment injuries. He also stated that he could not financially
afford a medical narrative from the specialists.
1

Since using July 26, 2013, the date the appeal was received by the Clerk of the Board, would result in the loss of
appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark
is July 20, 2013, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101-8193.

FACTUAL HISTORY
On June 26, 2010 appellant, then a 53-year-old temporary crew leader assistant, filed a
traumatic injury claim stating that he injured his neck in a car accident while working on
June 18, 2010. He was hospitalized from June 18 until July 23, 2010. OWCP accepted that
appellant sustained a mucosal tear of the posterior oropharynx and a closed fracture of the
cervical vertebra without spinal cord injury.
On March 17, 2011 appellant filed a claim (Form CA-7) for compensation for the period
June 19, 2010 through March 18, 2011. The employing establishment noted on the back of the
form that he was not paid any continuation of pay following his employment injury. It also
noted that appellant’s temporary employment ceased on July 4, 2010.
In an April 5, 2011 letter, OWCP noted that the medical reports on file only indicate
treatment from June 14 through July 14, 2010. It requested that appellant provide additional
medical documentation establishing total for work during the entire period claimed. In a
December 28, 2011 letter, OWCP requested that Dr. Trevor Kaye, a Board-certified internist,
appellant’s treating physician, provide an opinion regarding appellant’s work-related disability.
OWCP received medical reports for the period June 18 through July 23, 2010. These
reports include appellant’s initial hospital records as well as notes of being admitted to a
rehabilitation facility.
In a January 5, 2012 letter, Dr. Kaye stated that he only saw appellant once on
January 20, 2011 and did not manage his care related to this injury. He stated that he was in no
position to render an opinion regarding appellant’s work-related disability.
In a June 6, 2012 letter in response to a Congressional inquiry, the District Director of
OWCP stated that appellant was entitled to lost time from work for the period June 18, 2010
until his temporary appointment ended on July 4, 2010. The District Director further stated that,
since the medical evidence of file established that he was hospitalized until July 23, 2010, he
would be paid wage-loss compensation through July 23, 2010. Appellant and his attorney were
copied on this letter.
In a June 7, 2012 decision, OWCP denied appellant’s claim for wage-loss compensation
for the period July 24, 2010 through March 18, 2011 due to the lack of medical evidence
documenting his condition and/or supporting disability for that period.3
On June 17, 2012 appellant requested an oral hearing, which was held on
October 24, 2012. He testified that he had a very serious injury and argued that his injuries
precluded him from working for months following the injury, until approximately of 2010.
Appellant stated that his physicians could not provide him with a medical report addressing his
disability and he could not afford to pay for a comprehensive medical report. Appellant’s
supervisor at the time, Michael Calichman, testified that appellant was seriously injured and that

3

The record reflects that OWCP paid appellant total disability wage-loss compensation for the period July 5
through 23, 2010. It also noted that he was entitled to continuation of pay for the period June 19 through
July 4, 2010.

2

he would have continued to work past July 4, 2010 had he not been injured. Appellant’s son, a
paramedic, also testified to the severity of appellant’s condition.
Appellant submitted medical reports previously of record.
subsequent to July 23, 2010 was submitted.

No medical evidence

In a November 14, 2012 letter, the employing establishment indicated that it was working
on paying appellant continuation of pay for the period from June 19 through July 3, 2010. It
noted that he was terminated on July 4, 2010 due to lack of work. The employing establishment
also stated that it routinely provides modified-duty assignments to injured workers.
By decision dated January 22, 2013, OWCP’s hearing representative affirmed the June 7,
2012 decision that appellant had not established entitlement to wage-loss compensation for the
period July 24, 2010 through March 18, 2011.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.4 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.5 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.6 To
meet his or her burden, a claimant must submit rationalized medical opinion evidence, based on
a complete factual and medical background, supporting a causal relationship between the alleged
disabling condition and the accepted injury.7
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.9 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.10 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.
4

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
5

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

6

See Edward H. Horton, 41 ECAB 301 (1989).

7

A.D., 58 ECAB 166 (2006); Sandra D. Pruitt, 57 ECAB 126 (2005).

8

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
9

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

10

Merle J. Marceau, 53 ECAB 197 (2001).

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The Board will not require OWCP to pay compensation for disability in the absence of medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so, would essentially allow an employee to self-certify their disability and entitlement to
compensation.11
The Board has held that whether a particular injury causes an employee to be disabled for
work is a medical question that must be resolved by competent and probative medical
evidence.12 The weight of medical opinion is determined on the report of a physician, who
provides a complete and accurate factual and medical history, explains how the claimed
disability is related to the employee’s work and supports that conclusion with sound medical
reasoning.13
ANALYSIS
OWCP accepted that appellant sustained a mucosal tear of the posterior oropharynx and a
closed fracture of the cervical vertebra without spinal cord injury due to a June 18, 2010 workrelated car accident. Appellant was hospitalized from June 18 until July 23, 2010. He claimed
compensation for disability from June 19, 2010 through March 18, 2011. The evidence reflects
that appellant has been paid or is in the process of being paid, continuation of pay and wage-loss
compensation for the period June 19 through July 23, 2010. OWCP denied his claimed
compensation for disability from July 24, 2010 through March 18, 2011 on the grounds the
evidence was insufficient to establish that the claimed disability was due to his accepted workrelated conditions. Appellant has the burden of establishing by the weight of the substantial,
reliable and probative evidence, a causal relationship between his claimed disability and the
accepted conditions.14 The Board finds that he did not submit sufficient medical evidence to
establish employment-related disability for the period July 24, 2010 through March 18, 2011 due
to his accepted injury.
Appellant failed to submit any medical evidence addressing the period of claimed
disability from July 24, 2010 onwards. Dr. Kaye indicated that he saw appellant only once on
January 20, 2011, but stated that he did not manage appellant’s care related to this injury and was
in no position to render an opinion regarding appellant’s work-related disability. There is no
other medical evidence of record addressing appellant’s disability or his condition after
July 23, 2010. Testimony from appellant and appellant’s son with regard to appellant’s
condition after July 23, 2010 has no bearing on whether he was disabled for work as the question
of whether a particular injury causes an employee to be disabled for work is a medical question
that must be resolved by competent and probative medical evidence.15
While appellant argued before OWCP and on appeal that he was disabled and could not
financially afford a comprehensive medical report, it is his burden to provide medical evidence
11

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

12

Sandra D. Pruitt, supra note 7.

13

See T.E., Docket No. 09-2040 (issued July 27, 2010); Sedi L. Graham, 57 ECAB 494 (2006).

14

Alfredo Rodriguez, 47 ECAB 437 (1996).

15

Sandra D. Pruitt, supra note 7.

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addressing the specific period of disability for which he is claiming wage-loss compensation.
Without medical evidence addressing the specific period of disability for which he is claiming
wage-loss compensation, OWCP cannot determine the length of appellant’s work-related
disability. As noted above, the Board will not require OWCP to pay compensation for disability
in the absence of medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so, would essentially allow an employee to self-certify their
disability and entitlement to compensation.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he was totally disabled from
July 24, 2010 through March 18, 2011 due to his June 18, 2010 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 28, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

16

See supra note 11.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Chattanooga, TN,
Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-901
Issued: August 21, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 11, 2014 appellant, through counsel, filed a timely appeal from a February 7,
2014 merit decision of the Office of Workers’ Compensation Programs’ (OWCP) hearing
representative which denied his occupational disease claim. 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 met his burden of proof to establish that his bronchitis and
pneumoconiosis were causally related to exposure to dust and fumes in his employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 22, 2013 appellant, then a 58-year-old yard equipment technician, filed an
occupational disease claim alleging that he developed chronic bronchitis and occupational
pneumoconiosis due to exposure to dust and fumes in his former federal employment.2 He noted
that he first became aware of his condition and realized that it resulted from his employment on
January 11, 2013. Appellant reported the date of last exposure as October 1, 2012.
In an attached statement, appellant described his work history and exposure to dust and
fumes. From March 1974 to 1978, he worked as an aviation hydraulic mechanic in the U.S.
Marine Corps and may have had exposure to asbestos. From 1973 to 1974, appellant worked for
a private construction company for 10 months operating an end loader, dozer and truck and was
exposed to dirt and lime dust on a daily basis. On August 3, 1978 he began work at the
employing establishment in Kentucky and worked 11 years in construction, performing
maintenance work on diesel-powered dozers, scrapers, cranes, back hoes and track hoes.
Appellant was exposed to coal dust, rock dust and dirt dust on a regular basis, to asbestos when
brake shoes were removed from the equipment and to diesel fumes and smoke. He did not wear
a dust mask and worked eight hours a day, five days a week. From December 20, 1995 to
October 1, 2012, appellant worked at the Paradise Plant of the employing establishment
operating a bulldozer pushing lead. He was exposed to coal and rock dust, asbestos and diesel
fumes. Appellant wore a paper mask when he dumped coal cars.
In a February 1, 2013 narrative report, Dr. Glen R. Baker, a Board-certified internist and
pulmonary disease specialist, examined appellant for possible occupationally-induced lung
disease. He listed a history that appellant worked as a heavy equipment operator at the
employing establishment for 16 to 17 years and in construction for approximately 11 years.
Dr. Baker reported that appellant was in areas where asbestos and coal dust were present. He
noted that appellant was also stationed on ships when he was in the military from 1974 to 1978
and may have been exposed to asbestos while deployed. Dr. Baker related appellant’s
complaints of shortness of breath for the last two or three years, cough, sputum production and
wheezing. Appellant noted that his breathing was worse with exertion and exposure to hot or
cold weather, various dusts, odors and fumes.
Dr. Baker reviewed appellant’s medical history and reported that chest x-rays taken on
October 19, 2012 revealed evidence of occupational pneumoconiosis. He also observed that a
February 1, 2013 spirometry report revealed forced vital capacity (FVC) of 79 percent predicted
and forced expiratory volume (FEV1) of 77 percent predicted for prebronchodilator studies and
FVC of 81 percent predicted and FEV1 of 79 percent predicted for post-bronchodilator studies.
Dr. Baker opined that the testing demonstrated a mild restrictive ventilator defect. He provided
findings for spirometry and roentgenographic testing and the October 19, 2012 radiograph report.
Dr. Baker diagnosed occupational pneumoconiosis, mild restricted ventilator defect and mild
bronchitis. He explained that appellant had x-ray changes consistent with both coal workers’
pneumoconiosis and pulmonary asbestosis. Dr. Baker opined that appellant’s occupational
2

The record reveals that appellant filed a previous occupational disease claim (File No. xxxxxx612) on
December 26, 2011.

2

pneumoconiosis, mild bronchitis and restrictive ventilatory defect, was due to his exposure to
asbestos, coal dust and other chemicals in his work environment. He reported that according to
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), Chapter 5, Table 5-4, appellant had six percent impairment for his
pulmonary conditions.
By letter dated April 18, 2013, OWCP advised appellant of the factual and medical
evidence needed to substantiate his claim. It requested additional evidence to establish causal
relation. OWCP also requested additional evidence from the employing establishment.
In an April 10, 2013 statement, Mike Bradford, an industrial hygiene specialist with the
employing establishment, confirmed appellant’s employment as a heavy equipment operator
from 1978 to 2012. He provided a list of appellant’s various job positions and the duration that
he worked in his position.3 Mr. Bradford stated that site exposure data was not available for
appellant’s specific claimed exposures but industrial hygiene records were available regarding
the permissible exposure limits (PELs) for coal dust and asbestos between 1978 and 2012. He
reported that the data consistently demonstrated that exposures experienced by similar workers in
the same work environments as appellant were below the permissible PEL of 2.4 milligrams per
cubic meter of air for coal dust and asbestos. Mr. Bradford explained that the employing
establishment washed and cleaned its heavy equipment before repairs were made by gas and
diesel mechanics in order to minimize dust exposure. He also stated that most of the equipment
that appellant operated used cabs with filtered conditioned air, which minimized any dust
exposure during equipment operation. Mr. Bradford concluded that appellant’s claim should not
be considered work related.
The employing establishment also provided a description of appellant’s job duties, his job
application and various other personnel records regarding his employment.
In a May 2, 2013 statement, William T. Sabin, an assistant plant manager, confirmed that
appellant worked at the employing establishment in construction maintenance from 1978 to 1995
and as a heavy equipment operator from 1995 to 2012. He could not confirm or deny appellant’s
statement of exposure and stated that medical records would have information regarding whether
appellant was exposed to asbestos or dust particles. Mr. Sabin reported that the employing
establishment provided a respiratory protection program that was designed to protect workers by
limiting the inhalation of airborne contaminates such as dusts, gasses and vapors. He noted that
appellant’s training records would indicate the employing establishment’s commitment to keep
employees informed and trained. The employing establishment submitted various respiratory
tests, fitness tests, laboratory reports and medical records from throughout appellant’s
employment.
In a decision dated July 15, 2013, OWCP denied appellant’s claim. It accepted that he
was exposed to dust and fumes in his employment and was diagnosed with respiratory
conditions. OWCP denied his claim finding insufficient medical evidence to establish that his
pulmonary conditions were causally related to factors of his employment.
3

Appellant’s job positions included greaser, pan scraper operator, hoist operator, bulldozer operator, equipment
operator, heavy equipment operator and yard equipment technician.

3

By letter and appeal request form dated July 23, 2013, appellant’s attorney requested an
oral hearing that was held on December 9, 2013. Appellant described his employment history
and his exposure to dirt, coal dust and diesel fumes while working with moving equipment at the
employing establishment. He breathed in the dust and found it on his skin and clothes daily.
Appellant’s attorney stated that appellant worked for the employing establishment for 27 years
and was exposed to irritants such as coal dust, asbestos, arsenic, lead and ash which all produced
occupational lung diseases. He alleged that Dr. Baker’s report provided an opinion on causal
relationship between appellant’s lung condition and his federal work.
In a January 9, 2014 statement, Mike Patty, a workers’ compensation analyst at the
employing establishment, contended that despite appellant’s continuous statements of exposure
to coal dust and asbestos he had provided no evidence of actual harmful exposure while the
employing establishment provided data which demonstrated that exposure was below the PEL
established by Occupational Safety and Health Administration (OSHA). He also questioned
Dr. Baker’s reliance on x-rays as his basis for diagnosing appellant’s condition and asserted that
proper diagnosis of pneumoconiosis required high resolution computerized tomography testing.
In a January 14, 2014 statement, counsel responded to Mr. Patty’s statements and pointed
out that according to Mr. Bradford’s January 11, 2013 statement there was no testing available
specific to appellant’s respirable dust exposure. He reiterated that Dr. Baker reported that
appellant’s pulmonary conditions were a result of his occupational exposure to asbestos, coal
dust and other chemicals in his work environment.
By decision dated February 7, 2014, an OWCP hearing representative affirmed the
July 15, 2013 denial decision. He determined that Dr. Baker’s report was not sufficiently
rationalized to establish causal relation.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence4 including that he sustained an injury in the performance of duty and that any specific
condition or disability for work for which he claims compensation is causally related to that
employment injury.5 In an occupational disease claim, appellant’s burden requires submission of
the following: (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.6

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

4

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship 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 the specific employment factors
identified by the employee.8
ANALYSIS
Appellant claimed that he sustained bronchitis and pneumoconiosis as a result of
exposure to coal dust, diesel fumes, dirt and asbestos while working at the employing
establishment. OWCP accepted that he was exposed to coal dust and asbestos within OSHA
limits for exposure.9 It denied appellant’s claim finding insufficient medical evidence to
establish that his pulmonary conditions were causally related to his accepted exposure during
federal employment. The Board finds that this case is not in posture for decision as to whether
appellant’s pulmonary conditions were causally related to his employment.
An employee who claims benefits under FECA has the burden of establishing by the
weight of reliable, probative and substantial evidence that the condition for which compensation
is sought is causally related to a specific employment incident or to specific conditions of the
employment. As part of this burden, the employee must present rationalized medical opinion
evidence, based upon a complete and accurate factual and medical background, establishing
causal relationship.10 However, it is well established that proceedings under FECA are not
adversarial in nature, and while the employee has the burden to establish entitlement to
compensation, OWCP shares responsibility in the development of the evidence to see that justice
is done.11
In support of his claim, appellant submitted a February 1, 2013 report by Dr. Baker, who
related appellant’s complaints of shortness of breath, cough, sputum production and wheezing.
Dr. Baker reviewed appellant’s occupational exposure history and noted that he worked as a
heavy equipment operator for the employing establishment for 16 to 17 years and in areas with
asbestos and coal dust. Dr. Baker reported that an October 12, 2012 chest x-ray revealed
evidence of occupational pneumoconiosis and explained that the x-ray changes were consistent
with both coal workers’ pneumoconiosis and pulmonary asbestosis. He provided findings for
spirometry testing and noted mild restrictive ventilator defect. Dr. Baker diagnosed occupational
pneumoconiosis, mild restricted ventilator defect and mild bronchitis. He opined that appellant’s
7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

9

The fact that appellant’s exposures may have been within permissible limits as specified by OSHA does not
exclude contact with such respirable agents. This raises a medical issue as to causation. See P.C., Docket No.
08-1964 (issued April 6, 2009).
10

Supra note 5.

11

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

5

occupational pneumoconiosis, mild bronchitis and restrictive ventilatory defect, were due to his
asbestos exposure, coal dust exposure and other chemicals in his work environment.
The Board finds that, while Dr. Baker’s report is not completely rationalized, it is
consistent in supporting that appellant sustained an employment-related injury. Dr. Baker
accurately described appellant’s occupational history and exposure to coal dust and asbestos at
the employing establishment. He provided examination findings and observed mild restrictive
ventilator defect. Dr. Baker reviewed appellant’s history and noted that x-ray changes were
consistent with both coal workers’ pneumoconiosis and pulmonary asbestosis. He provided a
medical diagnosis and opined that appellant’s occupational pneumoconiosis, mild bronchitis and
restrictive ventilatory defect, were due to his asbestos exposure, coal dust exposure and other
chemicals in his work environment. Although Dr. Baker did not provide a fully-rationalized
medical opinion on causal relationship, he provided a consistent opinion based on examination
findings and an accurate factual and medical background that appellant’s current right shoulder
condition was causally related to factors of his employment. While his report is not sufficient to
meet appellant’s burden of proof to establish his claim, Dr. Baker’s opinion raises an
uncontroverted inference between appellant’s pulmonary condition and his federal employment.
It is sufficient to require OWCP to further develop the medical evidence and the case record.12
On remand, OWCP should prepare a statement of accepted facts and refer appellant to an
appropriate medical specialist for a detailed opinion as to whether his pulmonary conditions are
causally related to factors of his employment. Following this and any other further development
as deemed necessary, it shall issue an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for a decision and requires additional
development of the medical evidence by OWCP.

12

See R.O., Docket No. 13-626 (issued June 18, 2013); Jimmy A. Hammons, 51 ECAB 219 (1999); John J.
Carlone, 41 ECAB 354 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the February 7, 2014 merit decision of the Office
of Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: August 21, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________

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

Docket No. 21-1310
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On August 24, 2021 appellant filed a timely appeal from an April 29, 2021 merit decision
and an August 5, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a recurrence
of disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 5, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

injury; and (2) whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board on separate issues. 3 The facts and
circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The
relevant facts are as follows.
On July 18, 2000 appellant, then a 46-year-old heavy mobile equipment mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on June 28, 2000 he injured his left shoulder and
neck when installing a starter on an earthmover while in the performance of duty. He stopped
work on June 28, 2000 and returned to work on July 10, 2000. OWCP accepted the claim, assigned
OWCP File No. xxxxxx970 for right lateral epicondylitis and displacement of a cervical
intervertebral disc without myelopathy.
OWCP accepted that appellant sustained a right-hand contusion, a crush injury of the right
fingers, right carpal tunnel syndrome, a right Boutonniere deformity, and traumatic righ t hand
arthropathy due to a May 8, 2001 employment injury under OWCP File No. xxxxxx500 and right
carpal tunnel syndrome due to a June 5, 2003 employment injury under OWCP File No.
xxxxxx576. It administratively combined these claims with OWCP File No. xxxxxx970, with the
latter serving as the master file.
On December 9, 2004 the employing establishment notified appellant of its decision to
remove him for cause.
On July 23, 2019 OWCP expanded its acceptance of the claim to include impingement
syndrome of the left shoulder.
In a report dated March 10, 2020, Dr. John D. Marshall, who specializes in family
medicine, diagnosed displacement of a cervical intervertebral disc without myelopathy,
hypertension, and a shoulder injury.
In an April 22, 2020 report, Dr. Robert V. Glover, Jr., a cardiologist, discussed appellant’s
history of paroxysmal supraventricular tachycardia due to chemical exposure at work.
In a progress report dated May 6, 2020, Dr. Jeffrey A. Fried, a Board-certified orthopedic
surgeon, evaluated appellant for left arm weakness and noted that appellant was disabled and had
not worked in two years. He diagnosed cervical disc displacement, right carpal tunnel syndrome,
contracture at the proximal interphalangeal (PIP) joint of the right little finger, rotator cuff
syndrome, left elbow bursitis, right shoulder pain, impingement syndrome of the left shoulder, a
thyroid cyst, spondylolisthesis, grade 1, spondylolisthesis of the lumbar spine, and
supraventricular tachycardia.

3

Docket No. 15-1477 (issued October 22, 2015); Docket Nos. 09-1090 and 09-0226 (issued March 8, 2010).

2

On June 25, 2020 appellant filed a claim for compensation (Form CA-7) for disability from
work for the period March 5 to June 25, 2020. The employing establishment indicated on the form
that he had been removed for cause on December 13, 2004.
In a development letter dated July 2, 2020, OWCP indicated that appellant was alleging a
recurrence of disability on or around March 5, 2020. It noted that he had received schedule award
compensation through March 5, 2020 and had not been in receipt of wage-loss compensation prior
to the period of his schedule award. OWCP indicated that the employing establishment had
terminated appellant for cause effective December 13, 2004. It notified him of the definition of a
recurrence of disability and requested that he provide additional factual and medical information
supporting that his accepted condition worsened such that he was disabled from employment.
OWCP afforded appellant 30 days to respond to the request.
In an undated response received July 28, 2020, appellant asserted that he had not worked
since June 2008. He noted that the Social Security Administration (SSA) had found that he was
disabled in 2008. Appellant related that Dr. Fried had found that he was disabled under the current
file number. He submitted a decision from SSA finding that he was disabled as of
December 4, 2007.
In a progress report dated August 5, 2020, Dr. Fried evaluated appellant for left shoulder
pain and indicated that appellant was unable to work or perform overhead reaching. He diagnosed
other cervical disc displacement, right carpal tunnel syndrome, contracture at the PIP joint of the
right little finger, rotator cuff syndrome, left elbow bursitis, right shoulder pain, impingement
syndrome of the left shoulder, a thyroid cyst, spondy lolisthesis of the lumbar spine, and
supraventricular tachycardia. Dr. Fried opined that appellant remained disabled.
By decision dated August 28, 2020, OWCP found that appellant had not established a
recurrence of disability beginning March 5, 2020 causally related to his accepted June 28, 2000
employment injury.
On September 12, 2020 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
In a report dated October 6, 2020, Dr. Fried evaluated appellant for left shoulder pain. He
noted that appellant had not worked in two years. Dr. Fried repeated the diagnoses in his prior
report. He again opined that appellant remained disabled.
By decision dated December 9, 2020, OWCP’s hearing representative affirmed the
August 28, 2020 decision.
On January 12, 2021 Dr. Fried advised that appellant “remains unemployable. [Appellant]
has multiple orthopedic problems including cervical disc displacement, right carpal tunnel
syndrome, contracture of right little finger, bursitis of left elbow, impingement and joint pain in
right shoulder and left shoulder, and spondylolisthesis of the lumbar spine. In addition, [appellant]
has a history of supraventricular tachycardia with his heart.” He concluded that appellant was
“disabled from participating in the economy.” In a January 12, 2021 progress report, Dr. Fried
provided his previous diagnoses and noted that appellant remained disabled.

3

On February 18, 2021 appellant requested reconsideration. He submitted an April 14, 2021
progress report from Dr. Fried, who provided the same diagnoses and found that appellant
remained disabled.
By decision dated April 29, 2021, OWCP denied modification of its December 9, 2020
decision.
Thereafter, appellant resubmitted the January 12 and April 14, 2021 reports from Dr. Fried
and a January 22, 2010 SSA decision, finding that appellant was disabled beginning
December 4, 2007. He further submitted a March 2013 consultation report regarding his treatment
for tachycardia and an October 9, 2014 cardiology report.
In a rating decision dated June 1, 2021, the Department of Veterans Affairs (DVA)
continued its finding that appellant was 50 percent disabled due to sleep apnea and 30 percent
disabled due to supraventricular tachycardia.
On July 20, 2021 appellant requested reconsideration.
By decision dated August 5, 2021, OWCP denied appellant’s request for reconsideration
as he had not submitted evidence or raised an argument sufficient to warrant reopening his claim
for merit review under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition , which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment. 4 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.5
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.6
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
4

20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket
No. 18-0334 (issued December 4, 2018).

4

evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning. 7 Where no such rationale is present,
the medical evidence is of diminished probative value.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment
injury.
Appellant returned to work following his June 28, 2000 employment injury on
July 10, 2000. In December 2004, the employing establishment removed him from employment
for cause.
On January 12, 2021 Dr. Fried opined that appellant remained disabled from employment.
He diagnosed cervical disc displacement, right carpal tunnel syndrome, contracture of right little
finger, bursitis of left elbow, impingement, joint pain in right shoulder and left shoulder,
spondylolisthesis of the lumbar spine, and supraventricular tachycardia. Dr. Fried, however, failed
to address the cause of appellant’s disability or its relationship to his accepted employment injury.
The Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition or disability is of no probative value on the issue of causal relationship. 9
In progress reports dated May 6, August 5, and October 6, 2020, Dr. Fried discussed
appellant’s complaints of left shoulder pain and diagnosed other cervical disc displacement, right
carpal tunnel syndrome, contracture at the PIP joint of the right little finger, rotator cuff syndrome,
left elbow bursitis, right shoulder pain, impingement syndrome of the left shoulder, a thyroid cyst,
and spondylolisthesis of the lumbar spine. On May 6, 2020 he noted that appellant had not worked
in two years and was disabled. In his August 5 and October 6, 2020 reports, Dr. Fried indicated
that appellant remained disabled. He, while finding that appellant was disabled, did not address
whether the disability was causally related to the accepted employment injury. As noted, medical
evidence that does not offer an opinion regarding the cause of an employee ’s condition is of no
probative value on the issue of causal relationship or disability.10 Without a specific opinion
regarding how the accepted employment injury caused a recurrence of disability, Dr. Fried’s
reports are insufficient to meet appellant’s burden of proof.11

7

L.O., Docket No. 19-0953 (issued October 7, 2019); J.D., Docket No. 18-0616 (issued January 11, 2019).

8

M.G., Docket No. 19-0610 (issued September 23, 2019); G.G., Docket No. 18-1788 (issued March 26, 2019).

9

K.F., Docket No. 19-1846 (issued November 3, 2020); L.O., supra note 7; L.B., Docket No. 18-0533 (issued
August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
10

See id.

11

See D.B., Docket No. 21-0503 (issued August 24, 2021).

5

In a March 10, 2020 report, Dr. Marshall diagnosed displacement of a cervical
intervertebral disc without myelopathy, hypertension, and a shoulder injury. On April 22, 2020
Dr. Glover advised that appellant had a history of paroxysmal supraventricular tachycardia due to
chemical exposure at work. As these reports, however, fail to address the issue of whether
appellant was disabled from employment beginning March 2020, they are of no probative value. 12
As noted, appellant must submit rationalized medical evidence supporting causal
relationship between the disabling conditions and the accepted injuries. Furthermore, the medical
evidence must directly address the dates of disability for work for which com pensation is
claimed.13 None of the medical evidence of record provided a discussion of how appellant’s
accepted conditions caused disability during the period in question. 14 Appellant, therefore, has not
met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 15
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.16
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 17 If it chooses to grant reconsideration, it reopens

12

See R.J., Docket No. 19-0179 (issued May 26, 2020); see also supra note 11.

13

L.V., Docket No. 19-1725 (issued April 5, 2021); Sandra D. Pruitt, 57 ECAB 126 (2005).

14

Id.

15

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
16

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
17

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Supra note 6 at Chapter 2.1602.4 (February 2020).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

6

and reviews the case on its merits. 18 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
Appellant has not established that OWCP erroneously applied or interpreted a specific
point of law, or advanced a relevant legal argument not previously considered by OWCP.
Consequently, he is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(3). 20
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. Appellant submitted a March 2013 report diagnosing
tachycardia and an October 9, 2014 cardiology report. He also submitted a DVA rating decision
finding that he was 50 percent disabled due to sleep apnea and 30 percent disabled due to
supraventricular tachycardia. This evidence, however, is not relevant to the underlying issue of
whether appellant has established a recurrence of disability beginning March 5, 2020 causally
related to his accepted June 28, 2000 employment injury. The Board has held the submission of
evidence or argument, which does not address the particular issue involved does not constitute a
basis for reopening a case. 21
Appellant resubmitted a January 22, 2010 SSA decision, finding that he was disabled
beginning December 4, 2007 and reports from Dr. Fried dated January 12 and April 14, 2021. The
Board has held, however, that evidence which repeats or duplicates evidence already in the case
record does not constitute a basis for reopening a case for merit review. 22 Appellant has not
provided relevant and pertinent new evidence and, thus, is not entitled to a merit review based on
the third requirement under section 10.606(b)(3).23
The Board, accordingly, finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.24

18

Id. at § 10.608(a); see also F.V., Docket No. 18-0239 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

19

Id. at § 10.608(b); Y.K., Docket No. 18-1167 (issued April 2, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
20

Id. at § 10.606(b)(3)(i) and (ii); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

21

See P.G., Docket No. 20-1419 (issued September 16, 2021); C.C., Docket No. 20-0950 (issued October 29,
2020); Edward Matthew Diekemper, 31 ECAB 224 (1979).
22

See T.T., Docket No. 19-0559 (issued July 19, 2019); D.K., 59 ECAB 141 (2007); Eugene F. Butler, 36 ECAB
393 (1984).
23

20 C.F.R. § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

24

T.G., Docket No. 20-0329 (issued October 19, 2020); C.C., Docket No. 17-0043 (issued June 15, 2018).

7

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment
injury. The Board further finds that OWCP properly denied his request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 5 and April 29, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Akron, OH, Employer
__________________________________________

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

Docket No. 14-1184
Issued: January 8, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On April 28, 2014 appellant filed a timely appeal from a March 19, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established greater than 50 percent impairment of the
right lower extremity for which she received a schedule award.
FACTUAL HISTORY
OWCP accepted chondromalacia of the right patella and a right medial meniscal tear
sustained on June 29, 1999 when a cart struck appellant, then a 61-year-old mail processing
clerk, on her right knee. On December 14, 2000 Dr. John L. Pinkowski, an attending Board1

5 U.S.C. § 8101 et seq.

certified orthopedic surgeon, performed right knee arthroscopy, with chondroplasty of the lateral
compartment, partial lateral meniscectomy, and removal of a bone spur. He continued to follow
appellant through July 2001. Dr. Pinkowski administered viscosupplementation injections.2
In an April 18, 2002 report, Dr. Paul A. Steurer, an attending Board-certified orthopedic
surgeon, noted that x-rays of the right knee showed chondromalacia of the patella and medial
joint space narrowing at the meniscectomy site.
On December 20, 2002 appellant claimed a schedule award.3 In a February 17, 2003
report, an OWCP medical adviser found that, based on a review of the medical reports of
Dr. Pinkowski and Dr. Steurer, as well as a statement of accepted facts, appellant had seven
percent impairment of the right lower extremity due to status post meniscal resection and
patellofemoral chondrosis, according to the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter, the A.M.A., Guides) then in
effect. By decision issued March 10, 2003, OWCP granted appellant a schedule award for seven
percent impairment of the right leg. The period of the award ran from April 18 to
September 6, 2002.
Dr. Pinkowski continued to treat appellant for right knee arthritis from February 2003
through October 2008. He noted continued pain and limited flexion. Dr. Pinkowski
administered periodic viscosupplementation injections, authorized by OWCP.
On October 8, 2008 appellant requested an increased schedule award. She submitted a
January 8, 2009 report from Dr. Steurer opining that appellant had greater than seven percent
impairment of the right lower extremity according to the fifth edition of the A.M.A., Guides, due
to weakness, valgus deformity, and status post partial meniscectomy. Dr. Pinkowski stated on
January 8, 2009 that appellant had occupationally-related arthritis of the right knee, with limited
flexion. He administered corticosteroid injections.
In a February 4, 2009 report, an OWCP medical adviser opined that appellant had 50
percent impairment of the right leg according to the fifth edition of the A.M.A., Guides then in
effect, due to reduced cartilage interval of the right knee, weakness, partial meniscectomy, and
valgus deformity.
By decision dated February 12, 2009, OWCP granted appellant a schedule award for 50
percent impairment of the right lower extremity. It noted that she would be paid an additional 43
percent as she had already received a schedule award for seven percent impairment of the right
leg. The period of the award ran from September 7, 2002 to January 20, 2005.
From January 2010 to December 10, 2012, Dr. Pinkowski continued to administer
viscosupplementation injections to treat appellant’s right knee arthritis. He obtained January 14,

2

Appellant participated in physical therapy from 1999 through 2003.

3

OWCP had previously issued a May 8, 2002 decision denying a schedule award for right lower extremity
impairment based on a lack of medical evidence demonstrating a permanent impairment.

2

2010 x-rays showing narrowing of the tibiofemoral and patellofemoral joints with osteophytic
spurring.
On July 12, 2013 appellant claimed an additional schedule award. OWCP expanded the
claim to include osteoarthritis of the right knee, and requested that Dr. Steurer submit an updated
impairment rating including arthritis as an accepted condition. In response, Dr. Steurer
submitted a December 19, 2013 report, reviewing appellant’s history of injury and treatment. On
examination of the right knee, he found an increased varus deformity, loss of 10 degrees
extension, flexion limited to 100 degrees, and tenderness to palpation throughout the knee.
Dr. Steurer obtained x-rays showing “severe arthritis with complete loss of cartilage space in the
lateral compartment,” and arthritis in the patellofemoral joint. He diagnosed chondromalacia of
the right patella, status post surgery for meniscal tear, and osteoarthritis of the right knee.
Dr. Steurer opined that appellant had attained maximum medical improvement. Referring to
Table 16-3, page 511 of the sixth edition of the A.M.A., Guides,4 he found 50 percent
impairment of the right leg due to a Class of Diagnosis (CDX) estimate for class 1 primary
arthritis of the right knee, as imaging studies revealed a complete loss of joint space with an
interval of zero millimeters. Dr. Steurer assessed an additional three percent impairment for
patellofemoral arthritis according to Table 16-3, adding the two impairments to equal a total 53
percent impairment of the right lower extremity.
On February 6, 2014 OWCP requested that an OWCP medical adviser review the
medical record and updated statement of accepted facts, and submit an impairment rating for the
right lower extremity. In response, the medical adviser submitted a February 7, 2014 report,
concurring that appellant had reached maximum medical improvement as of Dr. Steurer’s
December 19, 2013 examination. He also concurred with Dr. Steurer’s use of the diagnosisbased rating method under Table 16-3. The medical adviser assigned a class 4 CDX due to a
joint space of zero millimeters. He assigned a grade modifier for Functional History (GMFH) of
1 for ongoing knee symptoms, and a grade modifier for findings on Physical Examination
(GMPE) of 5 for increased varus deformity and tenderness to palpation reflecting severe
underlying pathology. The medical adviser noted that a grade modifier for Clinical Studies
(GMCS) was not applicable as imaging studies were already considered in assigning the CDX
and should not be repeated in the rating scheme. Applying the net adjustment formula of
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX),5 or (1-4) + (5-4) resulted in a net adjustment
of -2, moving the default grade of C two steps to the left, to grade A. The medical adviser found
that appellant therefore had a 50 percent impairment of the right lower extremity according to
Table 16-3.
By decision dated March 19, 2014, OWCP denied appellant’s claim for an additional
schedule award as the medical evidence did not support more than 50 percent impairment of the
right leg, for which she had previously received schedule awards. It found that the weight of the
medical evidence rested with the medical adviser, who applied the appropriate criteria of the
A.M.A., Guides to Dr. Steurer’s findings.
4

A.M.A., Guides 509-11, Table 16-3, of the sixth edition is entitled “Knee Regional Grid -- Lower Extremity
Impairments.”
5

The net adjustment formula is set forth at page 521 of the sixth edition of the A.M.A., Guides.

3

LEGAL PRECEDENT
The schedule award provisions of FECA6 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members 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 determination is a mater which rests in the sound 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. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.7 The effective date of the sixth edition of the A.M.A., Guides is
May 1, 2009.
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).8 Under the sixth edition, the evaluator identifies the impairment of the class of
diagnosis, which is then adjusted by grade modifiers based on functional history, physical
evidence, and clinical studies.9 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.10 In some instances, an OWCP medical adviser’s opinion
can constitute the weight of the medical evidence. This occurs in schedule award cases where an
opinion on the percentage of permanent impairment and a description of physical findings is on
file from an examining physician, but the percentage estimate by this physician is not based on
the A.M.A., Guides. In this instance, a detailed opinion by an OWCP medical adviser which
gives a percentage based on reported findings and the A.M.A., Guides may constitute the weight
of the medical evidence.11
ANALYSIS
OWCP accepted that appellant sustained a right medial meniscal tear and chondromalacia
of the patella due to a June 29, 1999 traumatic right knee injury. Appellant underwent partial
lateral meniscectomy on December 14, 2000. On March 10, 2003 OWCP issued a schedule
6

5 U.S.C. § 8107.

7

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

8

A.M.A., Guides 3, (6th ed. 2008) Section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
9

A.M.A., Guides 494-531 (6th ed. 2008).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013); see also L.R., Docket No. 14-674 (issued August 13, 2014); D.H., Docket No.
12-1857 (issued February 26, 2013).
11

See Federal (FECA) Procedure Manual, id. at Chapter 2.810.8(j) (September 2010).

4

award for seven percent impairment of the right lower extremity, based on the clinical findings
of Drs. Steurer and Pinkowski, attending Board-certified orthopedic surgeons, as reviewed by an
OWCP medical adviser. OWCP issued an augmented schedule award on February 12, 2009 for
an additional 43 percent impairment of the right leg due to weakness, valgus deformity, and
status post partial meniscectomy.
Appellant claimed an additional schedule award on July 12, 2013. OWCP expanded the
claim to include osteoarthritis of the right knee, and sought an updated impairment rating from
Dr. Steurer who provided a December 19, 2013 impairment rating finding a 53 percent
impairment of the right lower extremity according to Table 16-3 of the A.M.A., Guides, 50
percent for primary arthritis of the right knee with total loss of the joint space in the lateral
compartment, and three percent for patellofemoral arthritis. Dr. Steurer did not apply the net
adjustment formula to his clinical findings or discuss the applicability of any grade modifiers.12
OWCP then referred the medical record and a statement of accepted facts to an OWCP medical
adviser for review. In a February 7, 2014 report, an OWCP medical adviser reviewed
Dr. Steurer’s impairment rating and concurred his use of a diagnosis-based rating method under
Table 16-4. He noted, however, that Dr. Steurer did not properly apply the A.M.A., Guides, as
he did not perform grade modifier calculations or explain why it would be inappropriate to apply
grade modifiers. The medical adviser applied the net adjustment formula of (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX), or (1-4) + (5-4), to obtain a net adjustment of -2, moving the
default grade of C two steps to the left, to grade A. He found a 50 percent impairment of the
right lower extremity according to Table 16-3 due to class 4, grade A arthritis of the right knee.
As Dr. Steurer did not properly apply the rating criteria of the A.M.A., Guides, OWCP
properly relied on the medical adviser’s February 7, 2014 report. The medical adviser applied
the appropriate sections of the sixth edition of the A.M.A., Guides to Dr. Steurer’s clinical
findings. He found a 50 percent impairment of the right lower extremity due to arthritis. The
medical adviser calculated and applied grade modifiers for functional history and physical
findings, and explained why the grade modifier for clinical studies was superseded by the
consideration of imaging studies in the diagnosis-based rating element. He provided a detailed
discussion of how each element of the rating scheme related to the clinical findings observed by
appellant’s physicians.
The Board finds that OWCP properly relied on OWCP medical adviser’s February 7,
2014 impairment rating. The medical adviser properly applied the appropriate portions of the
A.M.A., Guides to Dr. Steurer’s clinical findings.13 He provided detailed explanations and
calculations for each rating element. Therefore, OWCP’s March 19, 2014 decision affirming the
February 12, 2009 schedule award finding a 50 percent impairment of the right lower extremity
was proper under the facts and circumstances of this case. There is no probative medical
evidence establishing a greater percentage of impairment.
12

Dr. Steurer also combined two diagnosis-based estimates in the same region, the knee. However, the A.M.A.,
Guides, provides that, where more than one diagnosis in a region can be used, the one that provides the most
clinically accurate impairment rating should be used. See A.M.A., Guides 499. Dr. Steurer did not explain how his
rating remained accurate in view of this prohibition in the A.M.A., Guides.
13

See supra note 11.

5

On appeal, appellant contends that her right knee condition remains active and disabling.
She describes symptoms of pain and stiffness interfering with activities of daily living. As stated
above, OWCP’s determination of a 50 percent impairment of the right lower extremity was
based on an OWCP medical adviser’s correct application of the A.M.A., Guides to the findings
provided by appellant’s physicians.
Appellant may request a schedule award or increased schedule award regarding the right
lower extremity 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 established that she sustained more than a 50
percent impairment of the right lower extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 19, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
IOWA CITY VETERANS MEDICAL CENTER,
Iowa City, IA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0945
Issued: July 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 4, 2016 appellant filed a timely appeal from a March 15, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from the last merit decision dated December 9, 2014, and the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of the claim.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On September 8, 2014 appellant, then a 59-year-old locksmith, filed an occupational
disease claim (Form CA-2), alleging that he developed pain and tenderness in his bilateral
elbows from repetitive motion of his wrists in the performance of duty. He first became aware of
his condition on April 1, 2014 and realized it was causally related to his employment on
June 1, 2014. Appellant did not stop work.
By letter dated October 14, 2014, OWCP advised appellant of the type of evidence
needed to establish his claim. It particularly requested that he submit a physician’s reasoned
opinion addressing the relationship between his claimed condition and specific employment
factors.
Appellant was treated by Dr. Mack H. Longmire, Board-certified in emergency medicine,
on July 12, 2013 for left elbow pain. Dr. Longmire noted that appellant presented on October 4,
2013 with persistent right elbow pain. Appellant stated that he was unable to get an appointment
to see an orthopedist so he went to the emergency room for a steroid injection of the right lateral
epicondyle. He reported working as a locksmith and frequently using a screwdriver which
exacerbated his elbow pain. Dr. Longmire noted findings of tenderness of the right lateral
epicondyle and pain with pronation against resistance. He diagnosed right lateral epicondylitis.
Dr. Longmire injected the lateral epicondyle with a steroid and appellant experienced significant
symptomatic improvement. An x-ray of the left elbow dated July 12, 2013 was normal.
Appellant was treated by Dr. Luke M. Gabe, a critical care specialist, on October 1, 2013,
for right elbow pain. He noted being diagnosed with left lateral epicondylitis during the past
summer and his physician provided a steroid injection which resolved his elbow condition.
Appellant reported frequently performing manual labor at his farm but he did not perform
aggravating movements at work. Dr. Gabe diagnosed lateral epicondylitis and fatigue and
prescribed a forearm brace.
Appellant submitted nurse’s notes from October 4, 2013 to August 29, 2014, where he
was treated for right elbow pain. He noted being diagnosed with left-sided tennis elbow and had
a steroid injection that improved his symptoms.
Appellant was treated by Dr. Dan Tong, a resident, on June 1, 2014, presenting with a
sixth-month history of right elbow pain with an onset of left elbow pain three weeks later. He
received injections bilaterally with an initial decrease in pain but his symptoms gradually
returned. Appellant noted working as a locksmith with repetitive upper extremity movements as
part of his job. He was prescribed forearm bands. Appellant was seen for physical therapy due
to the acute chronic lateral epicondylitis. He submitted physical therapy notes from May 29 to
July 2, 2014, where he underwent therapeutic exercises to improve his symptoms of left lateral
epicondylitis.
Appellant was treated by Dr. Katherine M. White, a Board-certified internist, on
August 29, 2014, for a routine follow-up. He reported his back pain was improved and his
depression was well controlled. Appellant noted undergoing physical therapy during the past
summer for left lateral epicondylitis. He reported doing a home exercise program with

2

improvement in symptoms. Dr. White diagnosed low back pain, hypertension, post-traumatic
stress disorder, depression, fatigue and lateral epicondylitis.
Appellant also submitted a position description for a locksmith dated October 15, 2003.
He also submitted an OWCP questionnaire dated November 7, 2014, and indicated that his
bilateral elbow condition was caused by repeatedly turning a screwdriver with both hands while
performing his locksmith duties. Appellant denied participating in sports.
The employing establishment submitted a statement dated October 28, 2014 from
appellant’s supervisor, Jessica Beswick.
Ms. Beswick indicated that the employing
establishment had no reason to refute appellant’s claim. She noted his tasks require a wide range
of physical exertion using fine motor skills, lifting up to 50 pounds, and repetitive twisting
motion using a screwdriver. Ms. Beswick indicated that when appellant’s injury was diagnosed
several precautions were put into place to minimize the effects of the activities that were
believed to be aggravating his injury.
In a decision dated December 9, 2014, OWCP denied appellant’s claim as the medical
evidence of record did not support that he had a medical condition causally related to the
accepted factors of his employment.
In an appeal form dated December 7, 2015, and received on December 15, 2015,
appellant requested reconsideration. He asserted in a supporting statement that numerous times
throughout his treatment history the healthcare providers opined that his work as a locksmith
entailed turning a screwdriver and continued pronation and supination of the wrist which caused
tennis elbow. Appellant indicated that the fact that he cared for land was immaterial and noted
he has been a farmer since 2004 and never had elbow pain prior to 2012 when he became a
locksmith. He indicated that his position as a locksmith required an extreme amount of physical
work, especially turning a screwdriver. Appellant referenced reports from Dr. Tong dated
May 29, 2014 and Dr. Longmire dated October 4, 2013 who indicated that repetitive upper
extremity movements performed as part of his job including frequently using a screwdriver
exacerbated his elbow pain. Appellant submitted other items all previously of record. He
submitted a schedule F from his 2004 federal tax return which addressed profit or loss from
farming. Appellant wrote on the tax return “Disputes ‘farming’ as cause.”
By decision dated March 15, 2016, OWCP denied appellant’s request for reconsideration
as it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.3 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

3

5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

3

OWCP’s decision for which review is sought.4 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.5
OWCP may not deny a reconsideration request solely because it was untimely filed.
When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake
a limited review to determine whether it establishes clear evidence of error. If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.6
To demonstrate clear evidence of error, a claimant must submit evidence that is relevant
to the issue that was decided by OWCP,7 is positive, precise, and explicit, and manifests on its
face that OWCP committed an error.8 The evidence must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must also
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question 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. A
determination of whether the claimant has demonstrated clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.9
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. As noted, an application for reconsideration must be received within one
year of the date of OWCP’s decision for which review is sought.10 As appellant’s request for
reconsideration was not received by OWCP until December 15, 2015, more than one year after
issuance of the last merit decision by OWCP on December 9, 2014, it was untimely.
Consequently, he must demonstrate clear evidence of error by OWCP denying his claim for
compensation.
The Board finds that appellant has not demonstrated clear evidence of error. In his
December 7, 2015 reconsideration request, appellant disagreed with OWCP’s decision denying
his claim for compensation. He asserted that he submitted sufficient medical evidence to
4

20 C.F.R. § 10.607(a).

5

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of
error” is intended to represent a difficult standard).
7

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

8

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

9

J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

10

20 C.F.R. § 10.607(a).

4

establish a causal relationship between his work duties and bilateral epicondylitis. Appellant
indicated that numerous times throughout his treatment history the healthcare providers noted
that his work as a locksmith entailed turning a screwdriver and the continued pronation and
supination of the wrist which caused tennis elbow. He indicated that the fact that he cared for
land was immaterial and noted he has been a farmer since 2004 and never had elbow pain prior
to 2012 when he became a locksmith. Appellant referenced reports from Dr. Tong dated
May 29, 2014 and Dr. Longmire dated October 4, 2013, who indicated that appellant performed
repetitive upper extremity movements as part of his job and frequently used a screwdriver which
exacerbated his elbow pain. The Board notes that while appellant addressed his disagreement
with OWCP’s decision denying his claim for an occupational disease, his general contentions do
not demonstrate clear evidence of error as they do not raise a substantial question as to the
correctness of OWCP’s most recent merit decision which denied appellant’s claim for an
occupational disease.
The Board notes that the underlying issue is medical in nature. The Board notes that
clear evidence of error is intended to represent a difficult standard. The submission of 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.11
Appellant submitted a position description for a locksmith dated October 15, 2003, a
report from Dr. Longmire dated October 4, 2013, a report from Dr. Tong dated June 1, 2014 and
physical therapy notes from May 29 to July 2, 2014. OWCP had previously considered this
evidence and appellant, in submitting these documents, did not explain how this evidence was
positive, precise, and explicit in manifesting on its face that OWCP committed an error in
denying his claim for compensation. Thus, these reports are insufficient to discharge appellant’s
burden of proof, as their resubmission is insufficient to raise a substantial question as to the
correctness of OWCP’s decision.
Appellant submitted a schedule F from his 2004 federal tax return which addressed profit
or loss from farming. He stated on the return “Disputes ‘farming’ as cause.” However, this
evidence is insufficient to demonstrate clear evidence of error as it does not address the
underlying issue in this case, whether appellant’s bilateral elbow condition was causally related
to his employment as a locksmith.
The Board finds that OWCP properly found that appellant’s December 7, 2015 request
for reconsideration failed to demonstrate clear evidence of error. It therefore properly denied
appellant’s reconsideration request.
On appeal, appellant reiterates assertions that he made before OWCP indicating that
although he did not file a timely reconsideration request he had submitted sufficient medical
evidence to establish that his bilateral elbow condition was related to his work as a locksmith.
However, as noted, the Board does not have jurisdiction over the merits of the claim. Appellant
has not presented evidence or argument that raises a substantial question as to the correctness of
OWCP’s decision for which review is sought.
11

D.G., 59 ECAB 455 (2008).

5

CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and failed
to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 15, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 27, 2016
Washington, DC

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

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

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

6