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

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

Docket No. 14-1222
Issued: November 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 2, 2014 appellant, through her attorney, filed a timely appeal from the March 6,
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 met her burden of proof to establish that she sustained an
injury on November 23, 2012.
FACTUAL HISTORY
On December 3, 2012 appellant, then a 54-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 23, 2012 at 10:50 a.m. she sustained a right upper
arm injury while delivering a heavy mail parcel. The parcel slipped, she stopped it with her right
1

5 U.S.C. §§ 8101-8193.

hand and felt a pulling sensation in her biceps muscles of the right arm. Appellant did not state
whether she stopped work at the time of the November 23, 2012 incident.2
In a December 13, 2012 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of her claim.
Appellant submitted a November 23, 2012 statement in which she noted that on that date
she pulled open a door while delivering a heavy mail parcel. She caught the parcel with her right
hand when it began to slip. Appellant felt a pulling sensation in her right biceps muscles and
then experienced pain down her right arm and a tingling sensation in her right fingers. At 10:50
a.m. on November 23, 2012 she spoke by telephone to Dan Wiley, a supervisor, about the
incident. Appellant contacted her physician, who responded by leaving her a message and she
subsequently made an appointment for the next week.
In the statement dated November 23, 2012, Justin Staten, the postmaster at appellant’s
workplace and her immediate supervisor, provided a description of the November 23, 2012 work
incident, similar to that provided by appellant. Mr. Staten noted that appellant called and spoke
with Mr. Wiley and then contacted her physician, who told her that she needed diagnostic testing
to evaluate her right arm and shoulder. Appellant finished delivering her mail route and advised
that she would set up an appointment with the physician who performed a prior right arm
surgery. Mr. Staten indicated that “[t]his is an ongoing injury with this [appellant]” noting that
she had an accident while delivering her mail route in 2000 and had several prior right arm
surgeries.
In a January 16, 2013 decision, OWCP denied appellant’s claim. It found that she did not
submit sufficient medical evidence to establish that she sustained an injury in the performance of
duty on November 23, 2012. OWCP noted that appellant established the occurrence of a work
incident on November 23, 2012 but did not submit any medical evidence to establish a medical
condition due to the work incident.
The findings of a January 11, 2013 magnetic resonance imaging (MRI) scan of
appellant’s right shoulder revealed changes of chronic calcific tendinopathy, calcium
hydroxyapatite deposition disease and postoperative changes of her acromioclavicular joint, but
no obvious rotator cuff tear was observed. A January 11, 2013 arthrogram of appellant’s right
shoulder showed tendinosis of her rotator cuff tendons, subacromial decompression and biceps
tendonesis, but did not show any acute findings. There was no rotator cuff tear, detached labral
tear or degenerative change of her glenohumeral joint.
In a January 15, 2013 report, Dr. Robert J. Nowinski, an attending osteopath and Boardcertified orthopedic surgeon, noted that appellant complained of pain in her right biceps region
and reported having a “repeat injury” at work while reaching out to deliver mail. Upon physical
examination, appellant exhibited a decreased range of motion of her neck and left shoulder with
pain. She displayed no visual changes in her right shoulder but there was diffuse tenderness in
2

The record reflects that appellant had prior right shoulder problems and that on January 14, 2011 she underwent
right shoulder surgery in the form of right rotator cuff biceps retrieval with tenodesis. It is unclear if this surgery
was authorized by OWCP.

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her right biceps muscles. Dr. Nowinski noted that there was full passive motion and no
instability in her right shoulder, although motion was painful and weak at the terminal range.
The findings of MRI scan testing of appellant’s right shoulder showed that her rotator cuff and
biceps tendonesis were grossly intact and there was no evidence of a complete tear.
Dr. Nowinski diagnosed right shoulder biceps tendon pain with spasms, status post
decompression and repair. He advised that appellant could return to work because no definitive
tear in her right shoulder was noted. Dr. Nowinski recommended a cortisone injection of the
shoulder.
In an April 16, 2013 report, Dr. Nowinski advised that appellant was seen on that date for
a recheck and that she was status post right shoulder biceps tendonesis performed on
January 14, 2011. He indicated that repeat MRI scan and arthrogram testing showed that her
right rotator cuff and biceps tendonesis were intact, but she reported injuring herself lifting a
35-pound box which slipped, causing her to catch it with her right arm. Appellant exhibited full
range of neck and left shoulder motion without pain and right shoulder testing showed full
passive motion and active forward flexion to 150 degrees with pain and guarding. Her right
shoulder displayed stable motion and intact neurovascular status, but there was diffuse
tenderness in the biceps region. Dr. Nowinski provided the diagnosis of right shoulder biceps
tendon pain with spasms, status post decompression and repair. He provided essentially the
same findings in a July 11, 2013 report, but recommended that appellant undergo repeat MRI
scan testing of her right shoulder.
In a December 5, 2013 report, Dr. Nowinski stated that appellant was seen on that date
for reevaluation of “her right shoulder U.S. Depart[ment] of Labor work-related injury.” He
indicated that her neck and left and right shoulders exhibited decreased, though stable, range of
motion with pain. With respect to her right shoulder, appellant had active forward elevation to
120 degrees and abduction to 80 degrees, near and Hawkins signs were positive and strength was
4/5. Dr. Nowinski provided a diagnosis of persistent right shoulder pain status post rotator cuff
repair and indicated that she would be reexamined after MRI scan testing of her right shoulder
was completed.
In a December 13, 2013 letter, appellant, through counsel, requested reconsideration of
OWCP’s January 16, 2013 decision. He asserted that the April 16, 2013 report of Dr. Nowinski
established her claim for a November 23, 2012 work injury.
By decision dated March 6, 2014, OWCP affirmed its January 16, 2013 decision finding
that appellant had not established a November 23, 2012 work injury. It determined that
Dr. Nowinski did not provide a clear, rationalized medical opinion that she sustained an injury
due to the accepted November 23, 2012 work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally

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related to the employment injury.3 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.5 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
ANALYSIS
On December 3, 2013 appellant filed a CA-1 form alleging that on November 23, 2012
she sustained a right upper arm injury when she used her right hand to stop a heavy mail parcel
that was slipping from her grasp. She felt a pulling sensation in the biceps muscles of her right
arm at this time. OWCP accepted the occurrence of the November 23, 2012 work incident. It
denied appellant’s injury claim on the grounds that she did not submit sufficient medical
evidence to establish that she sustained an injury in the performance of duty on
November 23, 2012.
The Board finds that appellant did not submit sufficient medical evidence to establish that
she sustained an injury in the performance of duty on November 23, 2012.
Appellant submitted a January 15, 2013 report in which Dr. Nowinski, an attending
osteopath and Board-certified orthopedic surgeon, noted that she complained of pain in her right
biceps region and reported having a “repeat injury” at work while reaching out to deliver mail.8
3

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

4

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury
caused by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an
occupational disease refers to an injury produced by employment factors which occur or are present over a period
longer than a single workday or work shift. 20 C.F.R. § 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).
5

Julie B. Hawkins, 38 ECAB 393 (1987).

6

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

7

See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

8

The evidence of record reflects that appellant had prior right shoulder problems and that on January 14, 2011
she underwent right shoulder surgery in the form of right rotator cuff biceps retrieval with tenodesis.

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Dr. Nowinski indicated that she displayed no visual changes in her right shoulder and that
diagnostic testing showed no definitive tear in her right shoulder, but noted there was diffuse
tenderness in her right biceps muscles. He stated there was full passive motion and no instability
in appellant’s right shoulder, although motion was painful and weak at the terminal range. This
report does not establish her claim for a November 23, 2012 work injury because Dr. Nowinski
did not provide a clear opinion on causal relationship.9 He mentioned appellant’s account of a
work incident on an unspecified date and diagnosed right shoulder biceps tendon pain with
spasms status post decompression/repair. Dr. Nowinski did not provide adequate opinion that
her observed right shoulder condition was related to the accepted November 23, 2012 work
incident. Further, he did not provide a full history of appellant’s preexisting right shoulder
condition for which surgery was performed.10
In April 16 and July 11, 2013 reports, Dr. Nowinski advised that appellant reported
injuring herself lifting a 35-pound box which slipped, causing her to catch it with her right arm.
Appellant exhibited full range of neck and left shoulder motion without pain and right shoulder
testing showed full passive motion and active forward flexion to 150 degrees with pain and
guarding. Dr. Nowinski provided the diagnosis of right shoulder biceps tendon pain with spasms
status post decompression/repair and mentioned her reporting of a work incident that appeared
consistent with the November 23, 2012 incident. Again he did not fully address appellant’s prior
right shoulder condition or explain how attempting to catch the mail parcel was competent to
cause injury to her biceps. On December 5, 2013 Dr. Nowinski provided a diagnosis of
persistent right shoulder pain status post rotator cuff repair. Although he generally advised that
appellant was being seen for reevaluation of “[appellant’s] right shoulder U.S. Depart[ment] of
Labor work-related injury,” he appeared to simply repeat her assertion of a work-related injury
rather than provide his own opinion on causal relationship. Dr. Nowinski did not provide a clear,
rationalized medical opinion that she sustained a specific diagnosed medical condition due to the
accepted November 23, 2012 work incident.
For these reasons, appellant has not established that she sustained a work-related injury
on November 23, 2012. She may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on November 23, 2012.

9

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
10

The record reflects that appellant submitted six prior claims for occupational and traumatic injuries. The nature
of these prior claims was not discussed by either Dr. Nowinski or appellant.

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ORDER
IT IS HEREBY ORDERED THAT the March 6, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Blaire, WA, Employer
__________________________________________

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

Docket No. 06-1565
Issued: February 20, 2007

Case Submitted on the Record

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

JURISDICTION
On June 29, 2006 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ December 5, 2005 nonmerit decision denying his request for a prerecoupment
hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
Office’s December 5, 2005 decision.1
ISSUE
The issue is whether the Office properly denied appellant’s request for a prerecoupment
hearing.
1

The only decision before the Board on this appeal is the Office’s December 5, 2005 nonmerit decision denying
appellant’s request for a hearing. Appellant states that he is appealing the Office’s October 5, 2005 decision.
However, the Office’s October 5, 2005 preliminary determination of overpayment is not a final decision with rights
of appeal. As of the filing of this appeal, the Office had not issued a final decision on the issue of overpayment.
Therefore, the Board does not have jurisdiction over the overpayment issue. (The Board has jurisdiction to consider
and decide appeals from final decisions; there shall be no appeal with respect to any interlocutory matter disposed of
during the pendency of the case). 20 U.S.C. § 501.2(c).

FACTUAL HISTORY
On March 9, 2003 appellant, then a 36-year-old customs inspector, filed a traumatic
injury claim that was accepted for a medial meniscus tear of the left knee. On December 19,
2003 his employment was terminated. Appellant received compensation for total disability from
December 19, 2003 through June 11, 2005, when he returned to work in the private sector.
On October 5, 2005 the Office made a preliminary determination that an overpayment in
the amount of $2,955.17 had occurred because appellant received duplicate payments for the
period January 26 through March 19, 2005. The Office further found that appellant was at fault
in the creation of this overpayment because he accepted payments that he knew or should have
known were incorrect. The Office advised him that, if he disagreed with the fact or amount of
the overpayment or the finding of fault, he had a right to submit any evidence or arguments and
the right to request a prerecoupment hearing within 30 days. By letter dated October 21, 2005,
appellant requested an extension of the 30-day time limitation, in order to respond to the
October 5, 2005 preliminary finding. The record contains an appeal request form, signed by him
and dated November 4, 2005 requesting a hearing on the issue of fault and possible waiver of
overpayment; a letter from appellant dated November 4, 2005 requesting a hearing; and a copy
of an envelope addressed to the Branch of Hearings and Review, bearing an illegible Canadian
postmark.
By decision dated December 5, 2005, the hearing representative denied appellant’s
request for a hearing on the grounds that his request was untimely. The hearing representative
indicated that, although appellant was not entitled to a hearing as a matter of right, the
overpayment issue could equally well be addressed by requesting reconsideration.2
LEGAL PRECEDENT
Section 10.432 of the Office’s regulations provides that, in response to a preliminary
notice of an overpayment, a claimant may request a prerecoupment hearing within 30 days of the
written notice of overpayment.3 Failure to request the hearing within this 30-day time period
shall constitute a waiver of that right.4
ANALYSIS
In computing a time period, the date of the event from which the designated period of
time begins to run shall not be included, while the last day of the period so computed shall be
included, unless it is a Saturday, Sunday or a legal holiday.5 The Office issued its preliminary
2

On February 10, 2006 appellant again requested an oral hearing. On March 8, 2006 he requested that a decision
be made based on the written record on the issues of fault and waiver. In a letter dated December 5, 2006, the
Office informed appellant that the December 5, 2005 denial of his request for a prerecoupment hearing remained in
effect.
3

20 C.F.R. § 10.432 (2003).

4

Id. See Willie C. Howard, 55 ECAB 564 (2004).

5

Afegalai L. Boone, 53 ECAB 533, 537 (2002).

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overpayment finding on October 5, 2005 advising appellant that he had 30 days to submit
evidence and request a prerecoupment hearing. Therefore, he had until Friday, November 4,
2005 to request a hearing.
The record contains an appeal request form signed by appellant and dated November 4,
2005, requesting a hearing on the issue of fault and possible waiver of overpayment. The record
also contains a letter from appellant dated November 4, 2005 requesting a hearing. The record
does not contain the envelope itself in which the letter and appeal form were sent, which would
bear the postmark. The record does contain a photocopy of the envelope, but the date of the
postmark is not clear. Under the Office’s procedures, the timeliness of a request for a hearing is
determined on the basis of the postmark of the envelope, which contains the letter requesting a
hearing.6 The Branch of Hearings and Review is required to retain the envelope in which a
request for a hearing is made, so as to establish the timeliness of the request for a hearing.7 In
this case, the case record does not contain the envelope itself from which the timeliness of the
hearing can be determined. The case will be remanded for the Office to determine, if possible,
the date that the letter requesting a hearing was postmarked. If the date of the postmark cannot
be determined, the Office should presume that the request was timely and grant the request for a
hearing, as it was the Office’s responsibility to keep the envelope or otherwise keep evidence of
the date of the delivery in the case record.8 The December 5, 2005 decision of the Office is
hereby set aside and remanded.9

CONCLUSION
The Board finds that this case is not in posture for a decision.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.4(a) (January 1999). The Office has administratively decided that the test used. In 20 C.F.R. § 10.616(a) for
determining the timeliness of hearing requests should apply to requests for prerecoupment hearings. 20 C.F.R.
§ 10.439. Accordingly, timeliness is determined by the postmark on the envelope, if available. Otherwise, the date
of the letter itself should be used. See James B. Moses, 52 ECAB 465 (2001), citing William J. Kapfhammer,
42 ECAB 271 (1990); see also Douglas McLean, 42 ECAB 759 (1991).
7

Id. at Chapter 2.1601.3(b).

8

See Carolyn O’Neal, 53 ECAB 645 (2002); see also Gus N. Rodes, 43 ECAB 268 (1991).

9

The Board notes that the hearing representative indicated that the overpayment issue could equally well be
addressed on reconsideration. However, a request for reconsideration is not available to a claimant in response to a
preliminary notice of overpayment. 20 C.F.R. § 10.432.

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ORDER
IT IS HEREBY ORDERED THAT the December 5, 2005 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for action consistent with
this decision.
Issued: February 20, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 11-1996
Issued: April 3, 2012

Case Submitted on the Record

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

JURISDICTION
On September 8, 2011 appellant filed a timely appeal of the June 28, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his consequential injury
claim.1 Pursuant to Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained additional conditions, including cervical spine
arthrosis for which surgery was recommended, as a consequence of his October 1, 2009
employment injuries.
1

In a decision dated October 13, 2011, OWCP denied modification of the June 28, 2011 decision which found
that appellant did not sustain cervical spine arthrosis for which surgery was required as a result of his accepted
October 1, 2009 employment injuries. The Board and OWCP may not have concurrent jurisdiction over the same
issue in a case. Consequently, the October 13, 2011 decision, issued while the Board had jurisdiction of the case, is
null and void. Douglas E. Billings, 41 ECAB 880 (1990); see also 20 C.F.R. § 501.2(c)(3).
2

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that the medical evidence of record is sufficient to
establish that his current neck and left arm, shoulder and hand symptoms and need for neck
surgery are causally related to his accepted injuries.
FACTUAL HISTORY
OWCP accepted that on October 1, 2009 appellant, then a 59-year-old rural carrier,
sustained a left knee sprain, left shoulder sprain, neck sprain, left thumb sprain/contusion,
localized primary osteoarthritis of the left hand and a torn medial meniscus of the left knee as a
result of a motor vehicle accident.
On February 16, 2010 OWCP accepted that appellant sustained a recurrence of disability
on January 28, 2010 due to authorized left hand surgery.
In an April 8, 2010 medical report, Dr. Keith M. Rinkus, an attending Board-certified
orthopedic surgeon, listed a history that appellant underwent a C6-7 fusion to treat his upper
extremity radiculopathy. He complained about significant pain in the left shoulder radiating into
his left arm. Dr. Rinkus listed findings on physical examination and reviewed x-ray results. He
advised that appellant had cervical spondylosis with stenosis and left-sided C5 radiculopathy.
Dr. Rinkus ordered a magnetic resonance imaging (MRI) scan of the cervical spine. In an
April 16, 2010 report, he advised that the MRI scan of the cervical spine showed a fusion at C5-6
and C6-7, considerable adjacent level disc disease that was worse at C4-5 with foraminal
stenosis and central canal stenosis with effacement of the spinal cord and significant stenosis at
C3-4. Dr. Rinkus diagnosed cervical adjacent level stenosis with left upper extremity
radiculopathy at C5 and ordered a C4-5 transforaminal epidural steroid injection.
In an August 30, 2010 medical report, Dr. Jerome D. Rosman, a Board-certified
orthopedic surgeon and OWCP referral physician, advised that appellant no longer had any
residuals or disability causally related to the October 1, 2009 employment injuries. He found
that appellant could perform his regular work duties with permanent restrictions related to his
preexisting nonemployment-related conditions.
In a May 11, 2010 report, Dr. Michael A. Romello, a Board-certified physiatrist, listed
findings on physical examination and diagnosed cervical spondylosis with stenosis and left-sided
radiculopathy at C5. On May 21 and June 25, 2010 he treated appellant’s cervical spondylosis,
radiculopathy and degenerative disc disease with transforaminal epidural injections. On July 15,
2010 Dr. Romello reported findings on physical examination and diagnosed lumbar spondylosis
and lumbosacral facet arthritis.
In an August 23, 2010 report, Dr. Rinkus listed findings on physical and x-ray
examination. He advised that appellant had significant C3-4 and C4-5 arthrosis with disc
osteophyte complex. Dr. Rinkus identified the previous fusion from C5, C6 and C7 with
significant arthrosis at C7-T1. He noted some blunting of cervical lordosis, but no kyphotic
deformity was seen. In reports dated September 17 and October 11, 2010, Dr. Rinkus listed
findings on physical examination and results of a cervical MRI scan. He reiterated his prior
diagnosis of cervical adjacent level stenosis with left upper extremity radiculopathy at C5.
Dr. Rinkus noted that nonoperative therapies had failed and recommended cervical

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decompression and fusion. In the October 11, 2010 report, he stated that the decision finding
that appellant’s current cervical condition was not causally related to the October 2009
employment incident was a nonsensical decision. Dr. Rinkus noted that appellant previously
underwent cervical surgery in 1985 at the levels which were subjacent to the current levels of
interest. The lower levels were successfully fused. Dr. Rinkus stated that it was a well-known
phenomenon that there could be adjacent level stenosis and degeneration which remained
asymptomatic most times. He advised that appellant was asymptomatic in his left upper
extremity until the 2009 employment incident. After this time, appellant had considerable pain
in his left upper extremity. Dr. Rinkus opined that there was a temporal relationship between the
accepted incident and appellant’s current symptoms. The fact that there was previous surgery to
the levels below the level of interest was immaterial.
In a November 18, 2010 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective November 20, 2010 based on Dr. Rosman’s August 30, 2010
medical opinion. It found that the medical evidence was insufficient to establish that his
preexisting conditions were aggravated or accelerated by the accepted conditions.
By decision dated June 28, 2011, an OWCP hearing representative reversed the
November 18, 2010 decision with regard to the termination of appellant’s compensation benefits,
finding that the statement of accepted facts reviewed by Dr. Rosman was incomplete, his
responses to OWCP’s questions regarding appellant’s continuing employment-related residuals
or disability were not clearly stated and his opinion was not supported by sufficient medical
rationale. The hearing representative, however, affirmed the November 18, 2010 decision with
regard to the finding that the medical evidence was insufficient to establish that appellant
sustained cervical spine arthrosis as a consequence of his October 1, 2009 employment injuries.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.3
Regarding the range of compensable consequences of an employment-related injury, Larson
notes that, when the question is whether compensability should be extended to a subsequent
injury or aggravation related in some way to the primary injury, the rules that come into play are
essentially based upon the concepts of direct and natural results and of claimant’s own conduct
as an independent intervening cause. The basic rule is that a subsequent injury, whether an
aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury. Thus, once the work-connected character of
any condition is established, the subsequent progression of that condition remains compensable
so long as the worsening is not shown to have been produced by an independent nonindustrial
cause.4

3

Albert F. Ranieri, 55 ECAB 598 (2004).

4

A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

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A claimant bears the burden of proof to establish a claim for a consequential injury.5 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence, which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.6
ANALYSIS
OWCP accepted that on October 1, 2009 appellant sustained an employment-related left
knee sprain, left shoulder sprain, neck sprain, left thumb sprain/contusion, localized primary
osteoarthritis of the left hand and a torn medial meniscus of the left knee. The Board finds that
appellant has not submitted sufficient medical evidence to establish that his cervical spine
arthritis and proposed surgery are a consequence of his accepted employment injuries.
Dr. Rinkus’ reports listed findings on physical examination and diagnostic testing. He
found that appellant had cervical spondylosis, cervical adjacent level stenosis with left upper
extremity radiculopathy at C5 and significant C3-4 and C4-5 arthrosis with disc osteophyte
complex. Dr. Rinkus recommended that appellant undergo cervical decompression and fusion.
In an October 11, 2010 report, he opined that appellant’s cervical symptoms were causally
related to the accepted October 1, 2009 employment incident as he was asymptomatic prior to
this incident. Dr. Rinkus noted that appellant’s 1985 cervical surgery was performed at levels
that were subjacent to the current levels of interest. He stated that it was a well-known
phenomenon that there could be adjacent level stenosis and degeneration which remained
asymptomatic most times. Dr. Rinkus stated that following the accepted incident appellant
experienced considerable pain in his left upper extremity. The fact that appellant had no
problems prior to the employment incident, without more by way of rationale, is insufficient to
establish his claim. The Board finds that Dr. Rinkus’ reports are of diminished probative value
because he failed to provide sufficient medical rationale explaining how the accepted October 1,
2009 motor vehicle accident caused the current cervical injury and proposed surgery.7
Dr. Romello’s reports found that appellant had cervical spondylosis with stenosis and
left-sided C5 radiculopathy, lumbar spondylosis and lumbosacral facet arthritis. He treated the
diagnosed cervical stenosis and left-sided radiculopathy at C5 with transforaminal epidural
injections. Dr. Romello did not provide a medical opinion addressing whether the diagnosed

5

J.J., Docket No. 09-27 (issued February 10, 2009).

6

Charles W. Downey, 54 ECAB 421 (2003).

7

John F. Glynn, 53 ECAB 562 (2002) (an opinion that a condition is causally related to an employment injury
because the employee was asymptomatic before the injury but symptomatic after it is insufficient, without
supporting rationale, to establish causal relationship).

4

conditions were causally related to the October 1, 2009 employment injury.8 The Board finds,
therefore, that his reports are insufficient to establish appellant’s claim.
On appeal, appellant contends that the medical evidence of record is sufficient to
establish that his current neck and left arm, shoulder and hand symptoms and the proposed neck
surgery were caused by the October 1, 2009 employment injuries. As discussed above, he did
not submit sufficiently rationalized medical evidence to establish that he sustained additional
conditions which warranted surgery that were caused, aggravated or a consequence of the
accepted injuries.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained additional
conditions, including cervical spine arthrosis for which surgery was warranted, as a consequence
of his October 1, 2009 employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 3, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

The medical opinion to establish a claim must be one of reasonable medical certainty and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant. Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, SOUTH SUBURBAN
PROCESSING & DELIVERY CENTER,
Bedford Park, IL, Employer
__________________________________________

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

Docket No. 17-0660
Issued: July 14, 2017

Case Submitted on the Record

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

JURISDICTION
On February 1, 2017 appellant filed a timely appeal from a September 16, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated October 22, 2015, to 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 over the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of the claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal appellant contends that she submitted relevant and pertinent new evidence on
reconsideration and, therefore, OWCP improperly denied her reconsideration request.2
FACTUAL HISTORY
On March 18, 2009 appellant, then a 54-year-old flat sorter operator, filed an
occupational disease claim (Form CA-2) alleging that she sustained pain in the shoulder, arm,
and hand and numbness in her fingers due to repetitive employment duties. She did not stop
work.
By letter dated April 1, 2009, OWCP informed appellant that further factual and medical
information was needed to support her claim. Appellant was afforded 30 days to submit the
necessary information.
In a letter received by OWCP on April 22, 2009, appellant described her 31 years of work
with the employing establishment, which included assignments as a distribution clerk, letter
sorting machine operator, and flat sorter operator. She alleged that the repetitive keying and
throwing mail along with pushing, pulling, and lifting of heavy equipment contributed to her
pain in her wrist, hands, right arm, and right upper shoulder.
On June 5, 2009 OWCP accepted appellant’s claim for bilateral shoulder tendinitis,
cervical tendinitis, bilateral carpal tunnel syndrome, and medial epicondylitis of the right elbow.
On November 16, 2009 it accepted her claim for complex regional pain syndrome (CRPS) of
both wrists and hands.
In a report dated November 27, 2013, Dr. Thomas A. McNally, Board-certified in
orthopedic surgery, noted that appellant had sustained a work-related repetitive use injury on
March 17, 2009. He related that appellant had flare ups of bilateral arm pain and paresthesias,
right worse than left over the past several years. Dr. McNally related appellant’s physical
examination findings and reviewed appellant’s diagnostic studies. He diagnosed cubital tunnel
syndrome, cervical spondylosis with myelopathy, cervical spinal stenosis, and cervical disc
degeneration. Dr. McNally related that he had discussed C6-7, C7-T1 anterior cervical
discectomy and fusion with appellant.
On July 24, 2014 OWCP accepted appellant’s claim for bilateral disorder of bursae and
tendons in shoulder region, spinal enthesopathy, bilateral carpal tunnel syndrome, bilateral
medial epicondylitis, bilateral reflex sympathetic dystrophy of the upper limb, and bilateral
brachial neuritis or radiculitis.
On February 23, 2015 appellant filed a claim for a schedule award (Form CA-7). In
support of her claim, appellant submitted an April 19, 2015 report wherein Dr. Blair Rhode, a
Board-certified orthopedic surgeon, diagnosed appellant with bilateral carpal tunnel syndrome,
bilateral rotator cuff tendinopathy, reflex sympathetic dystrophy, and brachial neuritis.
2

Appellant submitted additional evidence to OWCP after it rendered its September 16, 2016 decision. The
Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

2

Dr. Rhode noted that she had reached maximum medical improvement. He applied Table 15-23,
Table 15-5, and Table 15-26 of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009) (hereinafter A.M.A, Guides), and determined that appellant
had a left shoulder impairment of four percent, a right shoulder impairment of four percent, a left
wrist carpal tunnel syndrome of three percent, and right wrist carpal tunnel syndrome of three
percent. Dr. Rhode noted that this equaled a whole person impairment of eight percent.
On July 14, 2015 OWCP referred appellant’s record to OWCP’s medical adviser, for an
evaluation of permanent impairment. In an August 6, 2015 report, the medical adviser noted that
he could not use section 15.4f of the A.M.A., Guides to perform impairment ratings for carpal
tunnel syndrome since the electromyogram was normal. Instead he used section 15.2 of the
A.M.A., Guides for diagnosis of nonspecific wrist pain. Using Table 15-3, appellant’s
nonspecific wrist pain impairment indicated a class 1 grade C diagnosis, with a default value of 1
percent. The medical adviser noted a grade modifier of 1 for physical examination and a grade
modifier of 0 for clinical studies. He noted a net adjustment of 1, which moved appellant’s grade
to a grade B, for zero percent permanent impairment.
With regard to appellant’s impairment to her elbow, OWCP’s medical adviser utilized
section 15.2 of the A.M.A., Guides. He noted that appellant had medial epicondylitis, and that
this condition is often self-limited, and that it appeared that appellant was not currently suffering
from it. Therefore, using Table 15-4 of the A.M.A., Guides, the medical adviser determined that
appellant’s diagnosis was class 0 for a value of zero percent.
With regard to appellant’s bilateral shoulder permanent impairment, OWCP’s medical
adviser noted that, pursuant to Table 15-5, appellant’s diagnosis of partial thickness rotator cuff
tear was a class 1 grade C diagnosis, with a default value of three percent. He determined that
appellant had a functional history grade modifier of 3 and a physical examination grade modifier
of 1 and a grade modifier of 2 for clinical studies. The medical adviser noted that this yielded an
adjustment of plus 2, moving appellant’s grade to E. Using Table 15-5, he determined that
appellant’s permanent impairment of each upper extremity was five percent.
OWCP’s medical adviser used section 15.5 of the A.M.A., Guides for appellant’s CRPS,
and determined that as appellant was not exhibiting symptoms of CRPS, pursuant to Table 15-26
of the A.M.A., Guides, appellant had a class 0 diagnosis, with a value of zero percent. He
disagreed with Dr. Rhode’s impairment finding. The medical adviser noted that his rating
assumed positive nerve conduction velocity/electromyogram results for carpal tunnel syndrome,
and that the report clearly indicated that appellant did not have any conduction delays.
By decision dated October 22, 2015, OWCP issued a schedule award for five percent
permanent impairment of appellant’s right upper extremity and five percent permanent
impairment of appellant’s left upper extremity.
On September 12, 2016 appellant requested reconsideration of the October 22, 2015
decision. In support of her reconsideration request, appellant submitted an August 19, 2016
report, wherein Dr. Samuel J. Chmell, a Board-certified orthopedic surgeon, indicated that he
reexamined and reevaluated appellant on August 11, 2016. Dr. Chmell noted that he reviewed
the October 22, 2015 decision and that it was incorrect and incomplete. He indicated that a

3

glaring deficiency was that appellant had not been evaluated for an impairment to her upper
extremities based on her employment-related injury to her cervical spine. Dr. Chmell noted that
appellant had an accepted employment-related injury to her cervical spine and that her
electromyogram documented cervical radiculopathy and that her magnetic resonance imaging
scan documented multilevel disc protrusion with nerve root impingement. He noted that at the
C6-7 level she had an impingement on the spinal cord with myelomalacia. Dr. Chmell noted that
appellant has moderate-to-severe foraminal stenosis bilaterally at C4-5, C5-6, and C6-7. He
noted that these changes were on her cervical spine and as they affect her upper extremities, in
and of themselves, total more than five percent of each upper extremity. Dr. Chmell
recommended and requested an authorization to perform a proper evaluation of appellant’s upper
extremity impairment to include all diagnoses that are employment related.
Appellant also resubmitted Dr. Rhode’s April 19, 2015 report.
By decision dated September 16, 2016, OWCP denied appellant’s request for
reconsideration without reviewing the merits of the claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 When a claimant fails to meet one
of the above standards, OWCP will deny the application for reconsideration without reopening
the case for review on the merits.5
ANALYSIS
By decision dated October 22, 2015, OWCP issued a schedule award for five percent
permanent impairment of each upper extremity.
On September 12, 2016 appellant filed a timely request for reconsideration of the
October 22, 2015 decision. In support of her reconsideration request, appellant submitted an
August 19, 2016 report, wherein Dr. Chmell opined that OWCP’s October 22, 2015 decision was
incorrect. Dr. Chmell noted a deficit in that she had not been evaluated for an impairment to her
upper extremities based on her employment-related injury to her cervical spine, and noted that
appellant should receive a greater impairment based on the impairment to her upper extremities
due to her cervical conditions. He thus attempted to provide a legal argument in support of
appellant’s schedule award claim. However, Dr. Chmell’s argument has no color of legal
validity.6 OWCP has not accepted that the cervical conditions he diagnosed as causing
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.608(b).

6

See R.J., Docket No. 07-527 (issued June 8, 2007).

4

appellant’s permanent impairment, C4-7 foraminal stenosis, and C6-7 impingement with
myelomalacia are employment related.7 While it has accepted appellant’s claim for cervical
tendinitis, there is no medical evidence of record that this condition caused her any permanent
impairment of her upper extremities. The Board has held that a claimant may request a schedule
award or increased schedule award at any time based on evidence of new exposure or medical
evidence showing the progression of an employment-related condition resulting in permanent
impairment or increased permanent impairment.8 Dr. Chmell’s August 19, 2016 report is found
to lack relevancy to the issue of increased impairment and this does not require merit review for
purposes of an increased schedule award. Appellant’s September 12, 2016 request for
reconsideration did not demonstrate that OWCP erroneously applied or interpreted a specific
point of law. Additionally, she did not advance a relevant legal argument not previously
considered by OWCP. Consequently, appellant is not entitled to a review of the merits of her
claim based on the first and second above-noted requirements under section 10.606(b)(3).9
The Board also notes that appellant did not submit any new and relevant pertinent
evidence in support of her claim. Appellant resubmitted Dr. Rhode’s April 19, 2015 report, but
this evidence was duplicative of his prior report. Evidence or argument which repeats or
duplicates evidence already in the case record has no evidentiary value and does not constitute a
basis for reopening a case.10 Appellant did not submit any new and relevant pertinent medical
evidence establishing permanent impairment of more than five percent bilateral upper extremity
impairment.
As appellant did not show that OWCP erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by OWCP, or constitute
relevant and pertinent new evidence not previously considered, OWCP properly denied merit
review.
CONCLUSION
The Board finds that OWCP properly denied reconsideration of the merits of the claim
pursuant to 5 U.S.C. § 8128(a).

7

Thomas J. Englehart, 50 ECAB 319 (1999). Although the A.M.A., Guides includes guidelines for estimating
impairment due to disorders of the spine, a schedule award is not payable under FECA for injury to the spine. In
1960, amendments to FECA modified the schedule award provisions to provide for an award for permanent
impairment to a member of the body covered by the schedule regardless of whether the cause of the impairment
originated in a schedule or nonscheduled member. Therefore, as the schedule award provisions of FECA include the
extremities, a claimant may be entitled to a schedule award for permanent impairment to an extremity even though
the cause of the impairment originated in the spine.
8

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).

9

See P.M., Docket No. 16-1841 (issued March 3, 2017).

10

See S.E., Docket No. 16-1077 (issued October 26, 2016).

5

ORDER
IT IS HEREBY ORDERED THAT the September 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 14, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MATERIEL COMMAND, Richmond, KY,
Employer
__________________________________________

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

Docket No. 11-118
Issued: September 14, 2011

Case Submitted on the Record

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

JURISDICTION
On October 18, 2010 appellant filed a timely appeal from the October 7, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying modification of
her wage-earning capacity determination. Pursuant to the Federal Employees’ Compensation
Act (FECA)1 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 her burden of proof to establish that modification of
the October 22, 2002 wage-earning capacity determination was warranted.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 23, 1982 appellant, then a 30-year-old laborer, sustained a lumbar strain and
displacement of her L5-S1 disc without myelopathy. She stopped work and received OWCP
compensation for periods of disability.2
On November 12, 1998 Dr. Frank A. Burke, a Board-certified orthopedic surgeon serving
as OWCP’s referral physician, found that appellant could perform sedentary work which allowed
her frequent changes of position to accommodate back pain. On May 1, 2001 Dr. Andrew W.
Ryan, an attending Board-certified orthopedic surgeon, determined that she could return to work
without restrictions.
On October 22, 2002 a formal loss of wage-earning capacity decision was issued based
upon appellant’s ability to work in the constructed position of companion effective
November 3, 2002. The position required occasional lifting of up to 10 pounds and frequent
reaching, handling and fingering.3 In mid 2002 appellant’s vocational rehabilitation counselor
determined that she was vocationally capable of performing the position and that it was
reasonably available in her commuting area at a wage of $5.50 an hour.
In a May 3, 2007 letter to OWCP, appellant asked for her case to be reopened. She
asserted that her back injury had worsened and she was not able to perform any type of work. In
a February 13, 2008 decision, OWCP denied appellant’s claim on the grounds that she had not
established an employment-related recurrence of disability. In a June 17, 2009 order remanding
case,4 the Board set aside the February 13, 2008 decision and directed OWCP to consider
appellant’s May 3, 2007 letter as a request for modification of its October 22, 2002 wage-earning
capacity determination.
On remand, OWCP considered appellant’s request for modification of its October 22,
2002 wage-earning capacity determination, including the medical evidence she submitted in
support of her request.
In an April 16, 2007 report, Dr. Noel S. Ashcraft, an attending osteopath, noted that
appellant reported increased back symptoms since August 2006. He diagnosed mechanical low
back pain and possible bilateral radiculitis and recommended further treatment, including lumbar
facet injections. Appellant also submitted November 27, 2006 and February 5, 2007 reports
from Dr. Robert D. Owen, an attending Board-certified neurosurgeon, who discussed the fact
that she reported worsening symptoms since August 2006. Dr. Owen detailed the limited
findings on examination and recommended physical therapy treatment.5

2

Appellant was terminated from the employing establishment effective August 18, 1986.

3

The position allowed appellant frequent changing of position.

4

Docket No. 08-1579 (issued June 17, 2009).

5

The results of June 28, 2006 magnetic resonance imaging (MRI) scan testing of the left knee and October 16,
2007 MRI scan testing of the lumbar region showed degenerative changes in these areas.

2

In an August 19, 2009 decision, OWCP found that appellant failed to establish that
modification of the October 22, 2002 wage-earning capacity determination was warranted. It
noted that she had not shown that she underwent a material change in the nature and extent of the
injury-related condition.6
Appellant submitted a March 15, 2010 report in which Dr. Owen discussed her MRI scan
and myelogram testing and referred her to pain management services. Dr. Owen stated, “her
examination is really unchanged from the last visit, where I noted that she had normal strength,
symmetric reflexes, and a straight leg raise on the left which caused distal leg pain. No sensory
deficit was noted.”7 In a May 17, 2010 initial consultation report, Dr. Beno M. Kuharich, an
osteopath, detailed appellant’s medical history and reported findings on examination. Physical
examination showed that she had facet loading signs and restricted motion in her low back.
Appellant also submitted a group of medical records, dated between January 2009 and
February 2010, from the Veterans Hospital in Lexington, KY. The reports provided a summary
of her past back problems as well as the history of nonwork problems such as obesity,
degenerative joint disease in the hands and hypertension.
In a June 30, 2010 decision, OWCP affirmed the August 19, 2009 decision noting that the
newly submitted medical evidence did not establish a material change in the nature and extent of
her injury-related condition.
Appellant submitted numerous medical reports from Eastern Kentucky Pain Management
dated between July and September 2010 that detailed the periodic treatment of her low back
condition. She also submitted medical reports which had previously been submitted to OWCP.
In an October 7, 2010 decision, OWCP affirmed its June 30, 2010 decision noting the
insufficiency of the medical evidence submitted by appellant.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.8 OWCP’s procedure manual provides that, “[i]f a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss. In this instance the
[claims examiner] will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.”9
6

Appellant had not shown that the original wage-earning capacity determination was erroneous or that she had
been retrained.
7

Dr. Owen had last seen appellant in November 2009.

8

Katherine T. Kreger, 55 ECAB 633 (2004).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).

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Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.10 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.11
In addition, Chapter 2.814.11 of OWCP’s procedure manual contains provisions
regarding the modification of a formal loss of wage-earning capacity. The relevant part provides
that a formal loss of wage-earning capacity will be modified when: (1) the original rating was in
error; (2) the claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. OWCP procedures further provide that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met. If OWCP is seeking modification, it must establish that the original rating was in error, that
the injury-related condition has improved or that the claimant has been vocationally
rehabilitated.12
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, her wage-earning capacity is determined with due regard
to the nature of her injury, her degree of physical impairment, her usual employment, her age,
her qualifications for other employment, the availability of suitable employment and other
factors and circumstances which may affect her wage-earning capacity in her disabled
condition.13 When OWCP makes a medical determination of partial disability and of specific
work restrictions, it may refer the employee’s case to a vocational rehabilitation counselor
authorized by OWCP or to its wage-earning capacity specialist for selection of a position, listed
in the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the
open labor market, that fits that employee’s capabilities with regards to her physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.14
10

Stanley B. Plotkin, 51 ECAB 700 (2000).

11

Id.

12

See Federal (FECA) Procedure Manual, supra note 9, at Chapter 2.814.11 (June 1996).

13

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C § 8115(a). Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment conditions. The job selected
for determining wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives. Albert L. Poe, 37 ECAB 684, 690 (1986), David Smith, 34 ECAB
409, 411 (1982).
14

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953). See also Federal (FECA) Procedure Manual, supra note 9 at Chapter
2.814.8 (December 1993).

4

ANALYSIS
In the present case, OWCP based appellant’s loss of wage-earning capacity on a
determination that her wage-earning capacity was represented by wages she could earn in the
constructed position of companion.15 The position required occasional lifting of up to 10 pounds
and frequent reaching, handling and fingering, but allowed for frequent changing of position.
The Board finds that appellant did not submit evidence showing that OWCP’s original
determination with regards to her wage-earning capacity was erroneous.
On May 1, 2001 Dr. Ryan, an attending Board-certified orthopedic surgeon, determined
that appellant could return to work without restrictions.16 Appellant’s vocational rehabilitation
counselor then determined that appellant was able to perform the position of companion and that
state employment services showed the position was available in sufficient numbers so as to make
it reasonably available within her commuting area. OWCP properly relied on the opinion of the
rehabilitation counselor that appellant was vocationally capable of performing the companion
position and a review of the medical evidence reveals that she was physically capable of
performing the position. Appellant did not submit any evidence or argument showing that she
could not vocationally or physically perform the companion position around the time of OWCP’s
October 22, 2002 wage-earning capacity determination.
OWCP considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the companion position represented her wage-earning capacity.17 The weight of
the evidence of record establishes that appellant had the requisite physical ability, skill and
experience to perform the companion position and that such a position was reasonably available
within the general labor market of her commuting area. Therefore, OWCP properly based her
wage-earning capacity effective November 3, 2002 on the companion position. For these
reasons, appellant has not shown that its original determination with regards to her wage-earning
capacity was erroneous.
In a May 3, 2007 letter, appellant suggested that there was a material change in the nature
and extent of her injury-related condition. She submitted numerous medical reports which she
believed showed that she sustained such a material change.
The Board finds that the medical evidence submitted by appellant does not contain a
rationalized medical opinion explaining why an employment-related condition prevented her

15

OWCP had accepted that appellant sustained a lumbar strain and displacement of her L5-S1 disc without
myelopathy.
16

On November 12, 1998 Dr. Burke, a Board-certified orthopedic surgeon serving as OWCP’s referral physician,
indicated that appellant could perform sedentary work which allowed for frequent changes of position to
accommodate back pain.
17

See Clayton Varner, 37 ECAB 248, 256 (1985). Further, OWCP properly based its calculation of wageearning capacity on the opinion of appellant’s rehabilitation counselor which indicated that the minimum wage of a
companion in appellant’s labor market was $5.50 an hour.

5

from performing the companion position or otherwise establish that OWCP improperly
determined her wage-earning capacity.18
In these reports, attending physicians mostly described the conservative treatment of
appellant’s low back pain. These reports do not support a finding that appellant sustained a
material change in the nature and extent of her injury-related condition, because they do not
provide any opinion that her accepted work injuries, a lumbar strain and displacement of her L5S1 disc without myelopathy, contributed to a material worsening of her back condition.
In an April 16, 2007 report, Dr. Ashcraft, an attending osteopath, noted that appellant
reported increased back symptoms since August 2006. He diagnosed mechanical low back pain
and possible bilateral radiculitis and recommended further treatment, including lumbar facet
injections. Dr. Ashcraft did not, however, indicate that these findings were due to the accepted
back condition or that they represented a worsening of appellant’s condition.
Although appellant reported a worsening of back symptoms due to her accepted
conditions, the medical reports do not contain objective findings supporting such a worsening of
her back condition. For example, she submitted November 27, 2006 and February 5, 2007
reports in which Dr. Owen, an attending Board-certified neurosurgeon, discussed the fact that
she reported worsening symptoms since August 2006. However, Dr. Owen reported limited
findings on examination and recommended conservative treatment such as physical therapy. He
provided no indication that appellant’s continuing back problems were due to the accepted work
injuries. In a March 15, 2010 report, Dr. Owen stated that her examination was essentially
unchanged from the last visit in November 2009 when he noted that she had normal strength,
symmetric reflexes and a straight leg raise on the left which caused distal leg pain.
In a May 17, 2010 report, Dr. Kuharich, an attending osteopath, detailed appellant’s
medical history and reported findings on examination. He indicated that she had facet loading
signs and restricted motion in her low back, but he did not indicate that these findings were
related to the accepted back injuries. Appellant submitted numerous other medical treatment
notes, dated in 2009 and 2010, but none of these reports show a material change in the nature and
extent of her injury-related condition.
For these reasons, the Board finds that appellant did not show that modification of
OWCP’s wage-earning capacity decision was warranted and it properly denied her modification
request. Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that
modification of OWCP’s October 22, 2002 wage-earning capacity determination was warranted.

18

See Norman F. Bligh, 41 ECAB 230, 237-38 (1989). Moreover, appellant has not been retrained or otherwise
vocationally rehabilitated such that her work as a companion would not be representative of her wage-earning
capacity.

6

ORDER
IT IS HEREBY ORDERED THAT the October 7, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


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

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

Docket No. 08-869
Issued: August 13, 2008

Case Submitted on the Record

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

JURISDICTION
On February 4, 2008 appellant filed a timely appeal of the January 15, 2008 merit
decision of the Office of Workers’ Compensation Programs which denied his occupational
disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the case.
ISSUE
The issue is whether appellant sustained an occupational disease in the performance of
duty.
FACTUAL HISTORY
On April 5, 2007 appellant, then a 45-year-old mail handler, filed an occupational disease
claim alleging that he sustained a tingling sensation in the fingers and palm of his right hand and
a heavy feeling in his right and left arms due to working 84 hours in a week using both of his
hands to open bundled flats.

Medical evidence was received in support of his claim. In an April 9, 2007 duty status
report, Dr. M.J. Staines, an osteopath, stated that appellant felt numbness in the right arm, hand
and fingers while working overtime, noted clinical findings of “tunnels” on the right side, and
answered “yes” in the section marked diagnosis due to injury section. She also recommended
that appellant avoid the AI prep station and wear a splint. In an April 5, 2007 occupational
health services status report, Dr. Staines diagnosed arm pain and bilateral numbness “believed to
be caused by the operation of business equipment.” She allowed appellant to return to work with
the recommendation to avoid AI prep station work until cleared medically. In an April 9, 2007
report, Dr. Staines diagnosed bilateral upper extremity paresthesias and right hand pain. She
restricted appellant to no twisting or turning and to wear splints.
In an April 24, 2007 letter, the Office requested additional medical information from
appellant to support his claim. Additional information was submitted. In an April 13, 2007
report, Dr. Staines diagnosed bilateral upper extremity paresthesias and right hand pain. In an
April 5, 2007 report, Dr. Huneycutt1 diagnosed bilateral arm pain and numbness. An April 5,
2007 note diagnosed numbness in bilateral arms with worse in the right arm, because it felt like it
was asleep. In an April 9, 2007 visit note, Dr. Staines diagnosed bilateral upper extremity
paresthesias with right hand pain and advised limited use of twisting and torquing of the wrists.
In a May 10, 2007 letter, she described appellant’s physical capabilities and symptoms and
diagnosed bilateral upper extremity paresthesias with right hand pain. In an April 13, 2007 visit
note, Dr. Staines described appellant’s physical examination.
Appellant submitted factual information also. He submitted a description of his work
activities as a mail handler that require repetitive hand or arm motion including the AI prep
station, AI dumping station, low cost tray sorter, sorting parcel post/periodical sacks, and
loading/unloading semi trailers. In a February 27, 2007 letter, appellant described the history
and progression of his condition from March 5 to April 24, 2007 providing specific dates and
what he was doing at that time. He also described his activities outside of his employment.
On July 17, 2007 the Office denied appellant’s claim on the grounds that the medical
evidence does not establish that the claimed medical condition was related to the established
work-related events as there was no medical rationale explaining how the employment factors
contributed to the claimed arm and hand conditions.
On July 25, 2007 appellant requested an oral telephone hearing. A hearing was held on
November 14, 2007.
In a December 13, 2007 letter, Dr. Arno W. Weiss, Jr., Board-certified in plastic surgery,
stated that based on what appellant told him about his job he was convinced that appellant’s job
caused his carpal tunnel and was a direct result of appellant’s work exposure. He also stated that
appellant was constantly doing “highly repetitive things” in 12-hour shifts and for extended
workweeks.
In a January 15, 2008 decision, the Office denied appellant’s claim finding that the
medical evidence was insufficient to establish that appellant’s condition was causally related to
1

The signature line is illegible therefore Dr. Huneycutt’s first name and specialty could not be verified.

2

the accepted work factors. It did accept that appellant performed repetitive work duties
including grasping, pulling, pushing, reaching, and lifting and that he worked in excess of 40
hours per week as a mail handler beginning in February 2007.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim by the weight of the reliable,
probative and substantial evidence, including the fact that the individual is an “employee of the
United States” within the meaning of the Act and that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed, or stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.3
While the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty the opinion must not be speculative or equivocal. The opinion should
be expressed in terms of a reasonable degree of medical certainty.4
ANALYSIS
Appellant alleged that his bilateral hand and arm conditions are causally related to his
federal employment due to the repetitive use of his hands and arms in the performance of duty.
The Office accepted that appellant performed repetitive work duties including grasping, pulling,
pushing, reaching and lifting. It also accepted that appellant worked in excess of 40 hours per
week as a mail handler beginning in February 2007. The issue is whether the medical evidence
is sufficient to establish that appellant’s hand and arm conditions are causally related to his
employment.
The medical evidence submitted is not sufficient to establish that appellant’s conditions
are related to his employment. In her reports, Dr. Staines diagnosed bilateral upper extremity
paresthesia, with right hand pain and arm pain. The only diagnosis he provided was bilateral
upper extremity paresthesias, as pain is a symptom of a medical condition and does not constitute
2

Anthony P. Silva, 55 ECAB 179 (2003).

3

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

4

Morris Scanlon, 11 ECAB 384, 385 (1960).

3

a basis for payment of compensation.5 Dr. Staines stated that she believed appellant’s condition
was caused by the operation of business equipment but she did not explain what type of
equipment he used or how the use of such equipment could cause or contribute to appellant’s
diagnosed bilateral upper extremity paresthesias. Dr. Huneycutt diagnosed bilateral arm pain
and numbness but did not opine as to the cause of these conditions. Dr. Weiss opined that
appellant’s job caused his carpal tunnel as a direct result of work exposure and that appellant was
constantly doing “highly repetitive things” during his shifts. The description of “highly
repetitive things” is not adequate to describe what exactly appellant was doing in his
employment nor is it adequate to explain how such “highly repetitive things” caused the
diagnosed carpal tunnel. Dr. Weiss’ opinion does not contain the requisite medical rationale to
support that appellant’s carpal tunnel is causally related to his accepted employment factors.
While both Dr. Weiss and Dr. Staines concluded that appellant’s conditions were related to his
employment a mere conclusion without medical rationale explaining how and why the physician
believes that a claimant’s accepted exposure could result in a diagnosed condition is not
sufficient to meet the claimant’s burden of proof. The medical evidence must include rationale
explaining how the physician reached the conclusion he or she is supporting.6
While appellant believes his bilateral arm and hand conditions are related to his
employment the mere belief that the disease or condition was caused by employment factors is
not sufficient enough to establish a causal relationship between the two.7 The Board finds that
appellant has submitted insufficient medical evidence to establish that he sustained a condition in
the performance of duty.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an occupational disease in the performance of duty.

5

Robert Broome, 55 ECAB 339 (2004), citing John L. Clark, 32 ECAB 1618 (1981).

6

Beverly A. Spencer, 55 ECAB 501 (2004).

7

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the January 15, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Richard Heavey, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1479
Issued: December 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 21, 2017 appellant, through counsel, filed a timely appeal from a January 19,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision dated January 21, 2015 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On February 10, 2014 appellant, then a 55-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 29, 2014 she experienced a heart attack in the
performance of duty. She stopped work on January 30, 2014.
Appellant was initially treated in the emergency room by Dr. Sheba G. Vattamala, a
Board-certified internist. In January 29, 2014 hospital records, Dr. Vattamala related that
appellant was on duty delivering mail when she collapsed.
She indicated that an
electrocardiogram (EKG) test showed ST elevations and T-wave inversions in inferior leads.
Dr. Vattamala reviewed appellant’s history and provided physical examination findings. She
described the treatment that appellant received and diagnosed “status post ventricular fibrillation
arrest x2” and status post witnessed fall and trauma. Appellant was admitted to the cardiac care
unit.
In a February 6, 2014 hospital discharge report, Dr. Maurizio Diaco, a Board-certified
internist who specializes in cardiovascular disease, noted discharge diagnoses of ventricular
fibrillation arrest in the inferior myocardial infarction with right ventricular component, singlevessel coronary artery disease, dyslipidemia, mild anoxic encephalopathy, pneumonia by
computerized tomography (CT) scan, anemia secondary to above, and broken ribs. He explained
that overall, appellant’s left ventricular function was low normal.
By letter dated February 28, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested that she respond to an attached claim
development questionnaire in order to substantiate that the January 29, 2014 incident occurred as
alleged and provide additional medical evidence to establish a diagnosed condition causally
related to the alleged employment incident. Appellant was afforded 30 days to submit the
additional evidence.
OWCP denied appellant’s traumatic injury claim in a decision dated April 2, 2014
because she failed to establish fact of injury. It found that the evidence of record was insufficient
to demonstrate that the January 29, 2014 employment incident occurred as alleged and that she
sustained a diagnosed condition causally related to the alleged incident.
On May 13, 2015 OWCP received appellant’s reconsideration request. Appellant
submitted a detailed description of the January 29, 2014 incident. She also provided a
January 29, 2014 police investigation report which described that a 911 call had been received
3

Docket No. 16-1341 (issued December 20, 2016).

2

about a postal worker who had suddenly collapsed and was unconscious. Appellant resubmitted
her original Form CA-1 and hospital records.
Appellant also submitted a duty status report (Form CA-17) and an attending physician’s
report (Form CA-20) dated April 28, 2014 by Dr. Diaco. Dr. Diaco noted a date of injury of
January 29, 2014 and a history of injury of acute myocardial infarction. He checked a box
marked “yes” indicating that appellant’s condition was caused or aggravated by the employment
activity. Dr. Diaco explained: “physical exertion especially during cold weather may trigger a
myocardial infarction.” He related that appellant could return to full duty in July 2014.
In a June 10, 2014 work status note, Dr. Harris Ghaus, a Board-certified internist,
indicated that appellant could return to work on June 30, 2014 with restrictions of no lifting
above 30 pounds and no more than eight hours a day.
By decision dated July 10, 2014, OWCP affirmed the April 2, 2014 decision with
modification. It accepted that the January 29, 2014 incident occurred as alleged and that
appellant was diagnosed with a myocardial infarction, but denied her claim finding that the
medical evidence of record was insufficient to establish that her myocardial infarction was
causally related to the accepted incident.
On November 20, 2014 appellant again requested reconsideration.
In an October 28, 2014 narrative report, Dr. Diaco indicated that he was treating
appellant for a recent myocardial infarction in January. He noted that the January 29, 2014 work
event was related to a plaque rupture. Dr. Diaco opined that, although appellant may have had
some preexisting plaque prior to the event consistent with coronary artery disease, working
during cold weather at appellant’s strenuous work on January 29, 2014 did cause the plaque
rupture. He explained that it was well documented that plaque in the coronary artery may persist
for years, but it was always a “trigger” that brought on the event. Dr. Diaco reported that the
January 29, 2014 event did “cause a total occlusion of the right coronary artery suggesting it was
quite a dramatic event and caused the cardiac arrest.” He opined that “the work activity in cold
weather was the cause of her myocardial infarction and more precisely was the trigger of a
plaque rupture which caused the heart attack and the cardiac arrest.”
In a January 21, 2015 decision, OWCP denied modification of the July 10, 2014 decision.
It found that Dr. Diaco’s new medical report was insufficient to establish a causal relationship
between appellant’s myocardial infarction and the accepted January 29, 2014 employment
incident.
On January 4, 2016 appellant, through counsel, again requested reconsideration. He
alleged that appellant’s treating physician provided a rationalized medical opinion in regard to
causation. Counsel noted that a report by Dr. Ghaus would show that appellant’s high blood
pressure had been under control for the past seven years, so it could not have been the cause of
appellant’s heart attack, which she suffered on the job.
In a December 14, 2015 letter, Dr. Ghaus noted that appellant had been his patient since
2007 and was on medication for hypertension. He related that appellant’s blood pressure had
been well controlled since 2007.
3

Appellant also provided a print out of the temperature on January 29, 2014, which
showed a mean temperature of 18 degrees Fahrenheit, a maximum temperature of 24 degrees
Fahrenheit, and a minimum temperature of 12 degrees Fahrenheit.
In a January 15, 2016 letter, Dr. Diaco indicated that the connection between exertion in
cold weather to a myocardial infarction was not mere speculation, but rather was based on
extensive body of medical research on cardiac event triggers. He noted that, according to a
January 29, 2014 hospital record, appellant was on duty delivering mail when she fell down and
collapsed. Dr. Diaco opined: “based on my evaluation of the patient, I feel comfortable in
stating that the sustained physical activity in very cold weather was more likely than not the
trigger of [appellant’s] myocardial infarction on January 29, 2014.”
By decision dated January 27, 2016, OWCP denied appellant’s request for
reconsideration, finding that she failed to submit any evidence sufficient to warrant further merit
review under 5 U.S.C. § 8128(a). It found that the medical evidence submitted was cumulative
or substantially similar and irrelevant to the particular issue of this case.
Appellant, through counsel, appealed to the Board.
By decision dated December 20, 2016, the Board set aside the January 27, 2016 OWCP
decision denying further merit review of appellant’s case. It determined that OWCP failed to
address Dr. Diaco’s January 15, 2016 medical report, which was received by OWCP one day
before it issued its final January 27, 2016 decision. The Board remanded the case to OWCP for
consideration of the evidence in order to determine whether this evidence required further merit
review of appellant’s claim.
In a January 19, 2017 decision, OWCP denied further merit review of appellant’s case
under 5 U.S.C. § 8128(a). It found that, although Dr. Diaco’s January 15, 2016 report was new,
it was cumulative and substantially similar to his previously submitted reports.
LEGAL PRECEDENT
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 payment of compensation at any time on his own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument that: (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.5

4

5 U.S.C. § 8128(a).

5

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

4

A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.6 The one-year period begins on the date of the
original decision. However, a right to reconsideration within one year accompanies any
subsequent merit decision on the issues. This includes any hearing or review of the written
record decision, any denial of modification following reconsideration, any merit decision by the
Board, and any merit decision following action by the Board, but does not include
prerecoupment hearings.7 If OWCP chooses to grant reconsideration, it reopens and reviews the
case on its merits.8 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.9
ANALYSIS
In its January 21, 2015 decision, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record failed to establish that her myocardial infarction was
causally related to the accepted January 29, 2014 employment incident. Appellant subsequently
requested reconsideration and submitted additional medical evidence.
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not shown that OWCP erroneously applied or interpreted a specific point
of law; she has not advanced a relevant legal argument not previously considered by OWCP; nor
has she submitted relevant and pertinent new evidence not previously considered by OWCP.
In support of her January 4, 2016 reconsideration request, appellant submitted a
December 14, 2015 letter by Dr. Ghaus. Dr. Ghaus related that appellant had been on
medication for hypertension and that her blood pressure had been controlled since 2007. The
Board finds that this report is irrelevant to the contested issue of appellant’s claim as it does not
address whether appellant’s myocardial infarction was causally related to her January 29, 2014
employment incident. The Board notes that the submission of evidence that does not address the
particular issue involved does not constitute a basis for reopening a case.10 Likewise, the print
out of the temperature on January 29, 2014 is also irrelevant to the issue of causal relationship.
Appellant also provided a January 25, 2016 letter by Dr. Diaco, who noted that on
January 29, 2014 appellant was on duty delivering mail when she fell down and collapsed. He
reiterated that it was well documented that physical exertion in cold weather was connected to
sustaining a myocardial infarction. Dr. Diaco opined: “based on my evaluation of the patient, I
6

20 C.F.R. § 10.607(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3b(1) (January 2004).

8

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

10

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

feel comfortable in stating that the sustained physical activity in very cold weather was more
likely than not the trigger of [appellant’s] myocardial infarction on January 29, 2014.” The
Board notes that Dr. Diaco merely repeated his opinion from his October 28, 2014 narrative
report that appellant’s work activity in cold weather caused her myocardial infarction. The
Board has held that the submission of evidence which duplicates or is substantially similar to
evidence already in the case record does not constitute a basis for reopening a case.11
On appeal counsel contends that Dr. Diaco’s January 25, 2016 report directly addressed
the medical issue of causal relationship. He alleged that the medical report should have triggered
not only a merit review of appellant’s claim, but also acceptance of the claim. As explained
above, however, Dr. Diaco’s opinion on causal relationship in the new January 25, 2016 report
merely duplicates his opinion found in the October 28, 2014 report, which was previously
reviewed by OWCP. Counsel also alleged that OWCP’s decision was clearly erroneous because
Dr. Diaco’s medical reports sufficiently established a causal relationship between appellant’s
myocardial infarction and the accepted January 29, 2014 employment incident. He further
asserted that OWCP erred in not fulfilling its obligation to fully develop the medical record
because Dr. Diaco’s medical reports, at a minimum, suggested the existence of a causal
relationship. As noted above, however, the Board lacks jurisdiction to review the underlying
merits of appellant’s claim. Accordingly, it cannot review counsel’s arguments regarding
appellant’s traumatic injury claim on appeal.12
The Board finds, therefore, that because appellant did not provide OWCP with any
evidence which has met the requirements of 20 C.F.R. § 10.606(b)(3) sufficient to require further
merit review of her claim, it properly declined her request for reconsideration of the merits of her
claim under 5 U.S.C. § 8128(a).13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

11

E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

12

See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).

13

A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the January 19, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2017
Washington, DC

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

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

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

7