United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.K., Appellant
and
DEPARTMENT OF DEFENSE, TRAVIS AIR
FORCE BASE, Fairfield, CA, Employer
__________________________________________

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

Docket No. 07-1222
Issued: September 13, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 2, 2007 denying his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established a cervical condition causally related to
factors of his federal employment.
FACTUAL HISTORY
On April 27, 2004 appellant, then a 54-year-old forklift operator, filed an occupational
disease claim (Form CA-2) alleging that he sustained cervical degenerative disc disease causally
related to his federal employment. He indicated that his job involved loading and unloading
items, with daily twisting and turning of his back and neck. Appellant reported that he became
aware of the condition on November 1, 2003. In a narrative statement, he indicated that he

began working at the employing establishment in 1986 and his job involved daily twisting,
turning and shock vibration from operating a forklift.
An x-ray report dated January 7, 2004 revealed degenerative disc disease with
spondylosis and foraminal narrowing at C5-6 on the left. In a report dated March 23, 2004,
Dr. David Woodhouse, an internist, reviewed appellant’s medical history with respect to a knee
injury, hearing loss and low back pain. Dr. Woodhouse stated that appellant was seen on
January 7, 2004 with left-sided chest pain and right-sided neck pain. He noted the x-ray results
on January 7, 2004 and stated, “Again, these findings are felt to be due to occupational
exposures.”
By decision dated July 13, 2004, the Office denied the claim for compensation, finding
that the medical evidence was insufficient to meet appellant’s burden of proof.
Appellant requested a hearing before an Office hearing representative, which was held on
May 10, 2005. He submitted a June 13, 2005 report from Dr. Woodhouse, who stated that
appellant continued to have neck pain with a twisting motion. Appellant referred to his
March 23, 2004 report for further information.
By decision dated August 22, 2005, the Office hearing representative affirmed the
July 13, 2004 decision.
Appellant requested reconsideration and submitted an August 18, 2006 report from
Dr. Thomas McDonald, a chiropractor, who reported in his history that on November 1, 2003
appellant had picked up a coffee cup and felt cervical pain. Dr. McDonald diagnosed cervical
radiculopathy and cervical strain due to repetitive stress.
In a decision dated September 1, 2006, the Office reviewed the case on its merits and
denied modification.
Appellant again requested reconsideration and submitted an October 25, 2006 report from
Dr. McDonald who stated that radiographs taken January 7, 2004 showed a subluxation at C5-6.
Dr. McDonald stated, “This subluxation with its associated degenerative changes, in my opinion,
has resulted in the injury that [appellant] experienced on November 1, 2003 and is responsible
for the symptomology and findings which have continued to bother him to the present time.”
By decision dated February 2, 2007, the Office reviewed the case on its merits and denied
modification of the September 1, 2006 decisions.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed are causally related to the employment

1

5 U.S.C. §§ 8101-8193.

2

injury.2 In order to establish causal relationship, a physician’s opinion must be based on a
complete factual and medical background, 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 activities.3
Section 8101(2) of the Act provides that the term ‘“physician’ … includes chiropractors
only to the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.”4
ANALYSIS
Appellant alleged that his job duties as a forklift operator, including loading, unloading,
twisting and turning, contributed to a cervical condition. The Office does not contest that
appellant engaged in the identified activities during his federal employment. The issue is
whether the medical evidence is sufficient to establish a diagnosed neck condition causally
related to the identified work factors.
Dr. Woodhouse diagnosed degenerative disc disease at C5-6. He generally opined that
the condition was “due to occupational exposures.” Dr. Woodhouse did not provide a complete
medical history or a rationalized opinion on causal relationship. His reports are of diminished
probative value and are insufficient to meet appellant’s burden of proof.
Appellant also submitted reports from Dr. McDonald, a chiropractor. In order to be
considered a physician under the Act, there must be a diagnosis of subluxation as demonstrated
by x-rays. Dr. McDonald’s October 25, 2006 report does diagnose a C5-6 subluxation based on
x-rays and, therefore, he is considered a physician under the Act. He does not, however, provide
a rationalized medical opinion on causal relationship between a C5-6 subluxation and the
identified employment factors. Dr. McDonald referred to an injury on November 1, 2003, which
apparently refers to the date appellant’s neck symptoms began. He did not provide a complete
history with a proper factual and medical background. Dr. McDonald did not discuss the
specific job duties identified by appellant and provide a rationalized medical opinion explaining
how those work factors caused a cervical subluxation. The Board finds that the evidence from
Dr. McDonald is of diminished probative value to the issue presented.
It is appellant’s burden of proof to submit sufficient evidence to establish a diagnosed
cervical condition causally related to his federal employment. The evidence of record is not
sufficient to meet appellant’s burden of proof.

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Gary L. Fowler, 45 ECAB 365 (1994).

4

5 U.S.C. § 8101(2).

3

CONCLUSION
Appellant did not submit medical evidence of sufficient probative value to establish a
cervical condition causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 2, 2007 and September 1, 2006 are affirmed.
Issued: September 13, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Absecon, NJ, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0279
Issued: March 20, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

On November 19, 2018 appellant filed a timely appeal from a November 9, 2918 decision
of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
docketed the appeal as 19-0279.2
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision is incorporated herein by reference. The relevant facts are set forth
below.

1
Appellant timely requested oral argument pursuant to section 501.5(b) of Board procedures. 20 C.F.R. § 501.5(b).
By order dated December 10, 2019, the Board exercised its discretion and denied the request, finding that the
arguments on appeal could adequately be addressed based on the case record. Order Denying Request for Oral
Argument, Docket No. 19-0279 (issued December 10, 2019).
2
The Board notes that, following the November 9, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
3

Docket No. 13-0228 (issued July 12, 2013).

On December 7, 2007 appellant, then a 40-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his back, neck, and right shoulder that day when he
slipped and fell in the parking lot while in the performance of duty. OWCP accepted the claim for
sprain of back, lumbar region, and sprain of shoulder and upper arm, acromioclavicular, right.
Appellant stopped work on the date of injury and received continuation of pay through
January 20, 2008. He received wage-loss compensation on the supplemental rolls as of
January 20, 2008 and on the periodic rolls as of April 12, 2009. OWCP assigned the claim File
No. xxxxxx062.
By decision dated May 11, 2012, OWCP terminated appellant’s wage-loss compensation
and medical benefits. By nonmerit decision dated September 14, 2012, it denied his August 16,
2012 reconsideration request. On November 6, 2012 appellant filed an appeal with the Board. By
decision dated July 12, 2013, the Board found that OWCP met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits for the accepted lumbar and right
shoulder sprains, but that it did not meet its burden to terminate right shoulder tendinitis.4
OWCP thereafter paid retroactive wage-loss compensation to the date of termination, and
returned appellant to the periodic rolls. Appellant returned to part-time modified duty work on
September 12, 2014, and OWCP adjusted his monetary compensation accordingly.
On January 16, 2015 appellant was in a motor vehicle accident that was not employment
related. He stopped work on that date.
In August 2015, OWCP referred appellant to Dr. Stanley Askin, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. The statement of accepted facts (SOAF)
provided to Dr. Askin indicated that appellant had an additional claim for a May 22, 2003 injury,
adjudicated by OWCP under File No. xxxxxx445, and accepted for lumbosacral sprain. The SOAF
indicated that, following the 2003 injury, appellant had returned to full-time limited duty. OWCP
instructed Dr. Askin to base his opinion on the SOAF.
Dr. Askin opined that appellant had no residuals of the accepted conditions, and as such,
on February 1, 2016, OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits for both File No. xxxxxx445 and File No. xxxxxx062. By decision dated
March 4, 2016, OWCP finalized the termination, concluding that appellant had no residuals or
continuing disability as a result of either the May 22, 2003 or the December 7, 2007 accepted
employment injuries.
Appellant requested a hearing with OWCP’s Branch of Hearings and Review on
April 1, 2016. By decision dated September 2, 2016, a hearing representative affirmed the
March 4, 2016 decision.5

4

Id.

5

Appellant was separated from the employing establishment due to disability effective July 10, 2016.

2

By decisions dated December 16, 2016, and March 20, June 30, and November 21, 2017,
OWCP denied modification of its prior decisions.6
Appellant next requested reconsideration on June 5, 2018. He maintained that his
disability since the January 16, 2015 motor vehicle accident was employment related, that he had
additional compensable conditions, and that File No. xxxxxx445 remained open, noting that low
back surgery had been authorized. Appellant submitted additional medical evidence.
By decision dated November 9, 2018, OWCP found the evidence submitted of insufficient
probative value to modify its prior decisions.
The Board has duly considered the matter and finds that this case is not in posture for
decision. Upon review of the case record submitted by OWCP, the Board finds that the record
before it is incomplete.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files.7 For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required.8 As noted, by decision dated March 4,
2016, OWCP terminated appellant’s wage-loss compensation and medical benefits under both File
No. xxxxxx062 and File No. xxxxxx445. Both File No. xxxxxx445 and File No. xxxxxx062 are
accepted for lumbar conditions. The case record before the Board, however, does not contain File
No. xxxxxx445. As these two case files have not been administratively combined, the Board is
unable to determine if OWCP properly terminated appellant’s wage-loss compensation and
medical benefits under either or both files on March 4, 2016 and, if so, whether appellant has met
his burden of proof to establish continuing disability and/or entitlement to medical benefits in
either case after that date.9
For full and fair adjudication, the case must be returned to OWCP to administratively
combine the current case record with OWCP File No. xxxxxx445 to determine appellant’s
disability status and entitlement to medical benefits under both claims.10
Following this and such further development as it deems necessary, OWCP shall issue a
de novo decision. Accordingly,

6

Appellant had requested reconsideration on October 3 and December 24, 2016, April 4 and August 31, 2017. He
submitted medical evidence with each request.
7
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000); D.E., Docket No. 19-0880 (issued January 6, 2020).
8

D.E., id.

9

See T.M., Docket No. 19-1065 (issued December 17, 2019).

10

Id.

3

IT IS HEREBY ORDERED THAT the November 9, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: March 20, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greensboro, NC, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1177
Issued: January 12, 2011

Case Submitted on the Record

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

JURISDICTION
On April 16, 2009 appellant filed a timely appeal of an April 1, 2009 Office of Workers’
Compensation Programs’ merit decision denying an increased schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than five percent impairment of his left arm for
which he received a schedule award.
On appeal, appellant’s attorney asked that the Board review Dr. Rowley’s report and the
medical evidence in the record.
FACTUAL HISTORY
On September 3, 2004 appellant, then a 39-year-old city carrier, filed an occupational
disease claim alleging that he developed chronic pain in his elbows and wrists due to repetitive
motions in delivering mail. The Office accepted his claim for ulnar nerve neuritis on
January 16, 2004. Dr. John J. Graves, a Board-certified orthopedic surgeon, performed an ulnar

nerve decompression and medial epicondylectomy on June 16, 2004. Appellant requested a
schedule award on March 2, 2005.
By decision dated June 1, 2005, the Office granted appellant a schedule award for five
percent impairment of the left upper extremity. Appellant requested an oral hearing and by
decision dated August 14, 2006, an Office hearing representative affirmed this determination.
He requested reconsideration on October 11, 2006. By decision dated November 8, 2006, the
Office declined appellant’s request for reconsideration of the merits.
Appellant underwent an additional left ulnar nerve neurolysis with anterior transposition
on December 19, 2005. Nerve conduction studies dated December 20, 2007 were normal with
no electrophysiologic evidence of cervical radiculopathy, plexopathy, polyneuopathy or
myopathy and no evidence of ulnar neuropathy or median mononeuropathy.
Appellant sought additional medical treatment on February 25, 2008 from Dr. Mark L.
Philips who recommended additional physical therapy. The Office referred him for a second
opinion evaluation with Dr. William A. Somers, a Board-certified orthopedic surgeon, who
completed a report on May 8, 2008 and recommended further evaluation of flexor pronators and
ulnar collateral ligament about the left elbow. Dr. Somers stated that appellant had not reached
maximum medical improvement.
Appellant’s attending physician, Dr. Mark A. Rowley, a Board-certified orthopedic
surgeon, completed a report on January 12, 2009 examining his left elbow and finding 115
degrees of flexion with full rotation as well as mild tenderness. Dr. Rowley diagnosed medial
epicondylitis. He stated that appellant had chronic left elbow and upper extremity pain due to
medial epicondylitis and residual symptoms of ulnar nerve compression neuropathy. Dr. Rowley
noted that nerve conduction studies demonstrated no residual ulnar nerve compression and found
that appellant had reached maximum medical improvement. He opined that appellant had 5
percent impairment of the left upper extremity due to Grade 2 pain disturbance of 70 percent
multiplied by the maximum upper extremity impairment of the ulnar entrapment above the
midforearm of 7 percent.1 Appellant filed a claim for compensation requesting a schedule award
on January 26, 2009.
The Office referred this report to the district medical adviser on February 2, 2009. In
reports dated February 3 and 10, 2009, the district medical adviser agreed with Dr. Rowley’s
findings of five percent impairment of the left upper extremity. In a letter dated February 11,
2009, the Office requested additional medical evidence from appellant supporting more than five
percent impairment of the left upper extremity for which he has already received a schedule
award.
By decision dated April 1, 2009, the Office denied appellant’s request for a schedule
award finding that the medical evidence did not establish more than five percent impairment of
his left upper extremity for which he had received a schedule award.

1

American Medical Association, Guides to the Evaluation of Permanent Impairment, (5th ed. 2001), 482, Table
16-10 and 492, Table 16-15.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment for loss of loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the discretion of the Office. For consistent results and to ensure equal justice, the Board
has authorized the use of a single set of tables so that there may be uniform standards applicable
to all claimants. The Office evaluates the degree of permanent impairment according to the
standards set forth in the specified edition of the A.M.A., Guides. Effective February 1, 2001,
the Office adopted the fifth edition of the A.M.A., Guides as the appropriate edition for all
awards issued after that date.4
ANALYSIS
The Office granted appellant a schedule award for five percent impairment of his left
upper extremity on June 1, 2005. Appellant requested an additional schedule award on
January 26, 2009 and submitted a report dated January 12, 2009 from Dr. Rowley, diagnosed
medial epicondylitis and noted appellant’s symptoms of chronic left elbow and upper extremity
pain. Dr. Rowley found that appellant had reached maximum medical improvement. He applied
the appropriate edition of the A.M.A., Guides, fifth edition, and found that appellant had
decreased superficial cutaneous pain and tactile sensibility that may prevent some activity or
Grade 2 sensory deficit or pain of the ulnar nerve with a percentage range of 61 to 80 percent.
Dr. Rowley found that appellant had 70 percent impairment. He then properly multiplied this
percentage by the maximum percent upper extremity impairment due to sensory impairment of
the ulnar nerve or seven percent5 to reach 4.9 or 5 percent impairment of the upper extremity.
The district medical adviser reviewed this report and concurred with the percentage of
impairment. There is no medical evidence establishing a greater than five percent impairment of
the left upper extremity after appellant reached maximum medical improvement on January 12,
2009, the date of Dr. Rowley’s report. As appellant had already received a schedule award for
five percent impairment of his left upper extremity, the amount of his current rating of
impairment, he is not entitled to an additional schedule award.6

2

5 U.S.C. §§ 8101-8193, 8107.

3

20 C.F.R. § 10.404.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002). For new decisions issued after May 1, 2009 the Office began using the sixth
edition of the A.M.A., Guides. The A.M.A., Guides, sixth edition (2009); Federal (FECA) Procedure Manual, Part
2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA)
Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
5

A.M.A., Guides 492, Table 16-15.

6

Rose V. Ford, 55 ECAB 449, 455 (2004).

3

The Board has reviewed Dr. Rowley’s report and the medical evidence of record as
requested by appellant’s attorney and finds that based on this review the Board finds that
appellant has no more than five percent impairment of his left upper extremity for which he has
previously received a schedule award.
CONCLUSION
The Board finds that appellant has no more than five percent impairment of his left upper
extremity for which he has received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 1, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, ATLANTA
PROCESSING & DISTRIBUTION CENTER,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 06-2088
Issued: January 22, 2007

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 September 7, 2006 appellant filed a timely appeal of the June 5, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs. The latest merit decision in the case
is dated May 23, 2005. Because appellant filed her appeal more than a year after the last merit
decision, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board does not have jurisdiction
over the merits of the claim. Therefore, the only decision properly before the Board is the
Office’s June 5, 2006 nonmerit decision denying reconsideration.
ISSUE
The issue is whether the Office properly denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 5, 2003 appellant, then a 34-year-old clerk, filed an occupational disease claim,
Form CA-2, alleging back pain. Appellant stated that she had persistent back pain during and

after work because her duties required her to lift trays of mail. She alleged that her doctor
informed her that her back pain was related to the type of work she did. Appellant first became
aware of the condition on May 1, 2000 and realized that it was caused by her employment on
June 4, 2003. The employing establishment controverted her claim on the grounds that she had
not provided any medical documentation indicating the nature of her condition or that she
sustained a work-related injury.
By letter dated July 7, 2003, the Office requested additional information about appellant’s
claim. The information requested was based on the assumption that appellant had filed a claim
for a traumatic injury rather than an occupational disease. Appellant did not provide the
requested information in the allotted time.
By decision dated September 2, 2003, the Office denied appellant’s claim on the grounds
that she had provided no information about the alleged employment injury. It found that
appellant had proved neither the occurrence of an event or exposure that caused an injury nor
that she had a medical condition connected to the alleged event.
On October 2, 2003 appellant requested an oral hearing to review the Office’s decision.
By decision dated March 30, 2004, an Office hearing representative found that the case
was not in posture for a hearing. The hearing representative vacated and remanded the Office’s
September 2, 2003 decision on the grounds that the Office had not properly advised appellant of
the deficiencies in her claim. The hearing representative found that the Office requested that
appellant provide information about a traumatic injury rather than an occupational disease related
to lifting trays at work. The hearing representative ordered the Office to properly advise
appellant and then conduct a de novo review of her case.
The Office complied with the hearing representative’s order and, on April 16, 2004,
requested that appellant provide medical evidence proving a diagnosed back condition and its
relation to her federal employment. Appellant did not provide the requested information in the
allotted time.
By decision dated May 20, 2004, the Office denied appellant’s claim on the grounds that
she had not provided any medical evidence proving that she had a diagnosed back condition or
that the alleged injury was caused by her employment.
On May 18, 2005 appellant filed a request for reconsideration with the Office. As
grounds for reconsideration, appellant provided a written statement and over 150 pages of
medical records documenting treatment of her back from April 27, 2000 to December 3, 2004,
including treatment records, diagnostic reports and physical therapy reports.
On May 23, 2005 the Office issued a decision denying modification of its May 20, 2004
decision on the grounds that appellant had not provided any medical opinion evidence that her
employment was causally related to her diagnosed back condition. It found that the medical
evidence proved appellant’s diagnosis of lumbar degeneration caused by a herniated nucleus
between L-2 and L-3. The Office went on to find, however, that the medical evidence was not
sufficient to prove a causal relationship between appellant’s condition and her federal
employment.
2

On May 18, 2006 appellant requested reconsideration of the Office’s May 23, 2005
denial on the basis of new medical evidence. The record indicates that no new evidence was
submitted with the request for reconsideration.
By decision dated June 5, 2006, the Office denied appellant’s request for reconsideration
on the grounds that she did not submit any new medical evidence. It also noted that appellant
had raised no previously unconsidered legal contentions.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act, the Office has the
discretion to reopen a case for review on the merits.1 Section 10.606(b)(2) of Title 20 of the
Code of Federal Regulations provides that the application for reconsideration, including all
supporting documents, must set forth arguments and contain evidence that either: (i) shows that
the Office erroneously applied or interpreted a specific point of law; (ii) advances a relevant
legal argument not previously considered by the Office; or (iii) constitutes relevant and pertinent
new evidence not previously considered by the Office.2 Section 10.608(b) provides that, when
an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.3
ANALYSIS
The Board finds that appellant met none of the regulatory requirements for a review of
the merits of the Office’s May 23, 2005 decision. Appellant’s May 18, 2006 request for
reconsideration did not allege that the Office erroneously applied or interpreted a specific point
of law and did not advance a relevant legal argument not previously considered by the Office.
Appellant is thus not entitled to further review on the merits of her case under the first two
sections of 10.606(b)(2).4 Additionally, though appellant stated that new medical evidence was
the basis for reconsideration, she did not submit anything with her May 18, 2006 request. As
there was no relevant and pertinent new evidence for the Office to consider, appellant was not
entitled to review under the third section of 10.606(b)(2).5
Because appellant did not meet any of the statutory requirements for a review of the
merits of her claim, the Office properly denied the May 18, 2006 request for reconsideration.

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.606(b)(2).

3

Id. at § 10.608(b).

4

Id. at § 10.606(b)(2)(i) and (ii).

5

Id. at § 10.606(b)(2)(iii).

3

CONCLUSION
The Board finds that the Office properly denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 5, 2006 is affirmed.
Issued: January 22, 2007
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
PUGET SOUND HEALTH CARE SYSTEM,
Tacoma, WA, Employer
__________________________________________

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

Docket No. 20-0516
Issued: December 11, 2020

Case Submitted on the Record

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

JURISDICTION
On January 6, 2020 appellant filed a timely appeal from November 6 and December 9,
2019 merit decisions and a December 19, 2019 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that an
incident occurred in the performance of duty on September 10, 2019, as alleged; (2) whether
appellant has established entitlement to continuation of pay (COP); and (3) whether OWCP
properly denied appellant’s request for reconsideration of the merits of the December 9, 2019
decision, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 30, 2019 appellant, then a 61-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on September 10, 2019 he sustained a hairline fracture to his
lumbar spine after slipping and falling in mud while in the performance of duty. He noted that he
was walking to a trash can in a parking lot when he slipped and fell. On the reverse side of the
claim form the employing establishment acknowledged that appellant was injured in the
performance of duty. Appellant stopped work on September 10, 2019 and returned to work on
October 28, 2019.
By decision dated November 6, 2019, OWCP denied appellant COP as he had not reported
his September 10, 2019 injury on an OWCP-approved form within 30 days of the date of injury.
In a November 6, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. In a separate development letter
of even date, OWCP requested that the employing establishment provide additional information
including whether the alleged injury occurred on employing establishment premises and whether
the parking facilities were owned, controlled, or managed by the employing establishment. It
afforded both parties 30 days to submit the necessary evidence. No additional evidence was
received.
By decision dated December 9, 2019, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record was insufficient to establish that the September 10, 2019,
employment incident occurred as alleged. It noted that appellant had not responded to the
November 6, 2019 development questionnaire. OWCP concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
On December 17, 2019 appellant requested reconsideration of the December 9, 2019
decision. He asserted that OWCP had failed to evaluate documents that he had previously
submitted.
By decision dated December 19, 2019, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish 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,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.9 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements
in determining whether a case has been established. An employee’s statement alleging that an
injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence.10

3

Supra note 1.

4

S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6

S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).
7

R.K., Docket No. 19-0904 (issued April 10, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

8

Y.D., Docket No. 19-1200 (issued April 6, 2020); John J. Carlone, 41 ECAB 354 (1989).

9

See P.S., Docket No. 19-1818 (issued April 14, 2020); J.M., Docket No. 19-1024 (issued October 18, 2019); M.F.,
Docket No. 18-1162 (issued April 9, 2019).
10

See P.S., id.; M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

3

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that an incident
occurred in the performance of duty on September 10, 2019, as alleged.
In his Form CA-1, appellant noted that on September 10, 2019 he sustained a hairline
fracture to his lumbar spine after slipping and falling in mud. However, he did not submit a
detailed account of the alleged injury or any additional corroborating factual evidence describing
how he sustained an injury on September 10, 2019. The Board has found that such a vague
recitation of facts does not support a claimant’s allegation that a specific event occurred to cause
a work-related injury.11
In a letter dated November 6, 2019, OWCP informed appellant that the factual evidence of
record was insufficient to establish that the September 10, 2019 employment incident occurred as
alleged. It requested that appellant complete an attached questionnaire and provide a detailed
factual description of the alleged employment incident. Appellant, however, did not respond to
OWCP’s development letter. He neither presented evidence regarding the specific mechanism of
injury, as required in a claim for traumatic injury, nor did he allege that he experienced a specific
event, incident, or exposure at a definite time and place, and in a definite manner.12 As appellant
has not provided a detailed factual statement describing the alleged September 10, 2019
employment incident, the Board finds that he has not met his burden of proof to establish that he
experienced the employment incident at the time, place, and in the manner alleged, or that it caused
an injury.13
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8118 of FECA provides for payment of COP, not to exceed 45 days, to an employee
who has filed a claim with his or her immediate supervisor for a period of wage loss due to a
traumatic injury on a form approved by the Secretary of Labor within the time specified in section
8122(a)(2) of FECA.14 This latter section provides that written notice of injury shall be given

11

M.C., Docket No. 18-1278 (issued March 7, 2019); M.B., Docket No. 11-1785 (issued February 15, 2012).

12

Id.; see also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54 ECAB 174 (2002).

13

M.C., supra note 11; S.J., Docket No. 17-1798 (issued February 23, 2018).

14
5 U.S.C. § 8118; 20 C.F.R. §§ 10.5(q), (ee); S.D., Docket No. 19-1819 (issued July 2, 2020); A.F., Docket No.
14-1838 (issued January 22, 2015); Brady L. Fowler, 44 ECAB 343, 351 (1992).

4

within 30 days.15 The context of section 8122 makes clear that this means within 30 days of the
injury.16
OWCP’s regulations provide, in pertinent part, that to be eligible for COP, an employee
must: (1) have a traumatic injury which is job related and the cause of the disability and/or the
cause of lost time due to the need for medical examination and treatment; (2) file Form CA-1
within 30 days of the date of the injury; and (3) begin losing time from work due to the traumatic
injury within 45 days of the injury.17
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish entitlement to
COP.
20 C.F.R. § 10.205(a)(1) provides that to be eligible for COP, a person must have a
traumatic injury which is employment related and the cause of the disability and/or the cause of
lost time due to the need for medical examination and treatment. Here, OWCP denied the
traumatic injury claim by decision dated December 9, 2019 finding that appellant had not
established an injury occurring at the time and place, and in the manner alleged. Since there is no
traumatic injury, there is no employment-related disability. Consequently, the Board finds that
appellant is not eligible for COP.18
LEGAL PRECEDENT -- ISSUE 3
Section 8128 (a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation, at any time, on his or her own motion or on application.19
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.20

15

Id. at § 8122(a)(2).

16

C.C., Docket No. 18-0912 (issued July 11, 2019); J.S., Docket No. 18-1086 (issued January 17, 2019); Robert M.
Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).
17

20 C.F.R. § 10.205(a)(1-3).

18

See J.V., Docket No. 15-1942 (issued March 8, 2016); J.O., Docket No. 12-0267 (issued June 11, 2012).

19

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); W.C., 59 ECAB 372 (2008).

20
20 C.F.R. § 10.606(b)(3); see C.C., Docket No. 19-1622 (issued May 28, 2020); C.N., Docket No. 08-1569
(issued December 9, 2008).

5

A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.21 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.22 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.23
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of the December 9, 2019 decision, pursuant to 5 U.S.C. § 8128(a).
In his timely request for reconsideration, appellant alleged that OWCP had failed to
evaluate several documents that he previously submitted. However, he did not identify the alleged
documents or submit copies of the documents with his reconsideration request. Appellant also did
not submit new evidence in support of his request for reconsideration. As such, the Board finds
that he 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 by OWCP.24 Consequently, appellant is not entitled to a
review of the merits of his claim based on any of the above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).
On appeal appellant relies on additional evidence submitted on appeal in support of his
claim. However, as noted, evidence not before OWCP will not be considered by the Board for the
first time on appeal.25 Accordingly, the Board is precluded from reviewing this additional
evidence for the first time on appeal.
The Board therefore finds that OWCP properly determined that appellant was not entitled
to further review of the merits of his claim pursuant to any of the three requirements under 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.26

21

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b (February 2016).
22

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

23

Id. at § 10.608(b); see C.C., supra note 20; E.R., Docket No. 09-1655 (issued March 18, 2010).

24

Supra note 20.

25

Supra note 2.

26

D.M., Docket No. 18-1003 (July 16, 2020); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for
reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b), OWCP will
deny the application for reconsideration without reopening the case for a review on the merits).

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that an incident
occurred in the performance of duty on September 10, 2019, as alleged. The Board further finds
that appellant has not met his burden of proof to establish entitlement to COP. The Board also
finds that OWCP properly denied appellant’s request for reconsideration of the merits of the
December 9, 2019 decision, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 19 and 9, and November 6, 2019
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 11, 2020
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Loomis, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1970
Issued: February 12, 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 July 19, 2007 appellant filed a timely appeal from the April 17, 2007 decision of the
Office of Workers’ Compensation Programs finding that an overpayment of $822.29 had been
created and that waiver of the recovery of the overpayment was not warranted. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the issue of overpayment.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $822.29; and (2) whether the Office properly
determined that waiver of the recovery of the overpayment was not warranted. On appeal,
appellant contends that waiver is warranted because of the four-and-a-half-year delay in
attempting to collect the overpayment.
FACTUAL HISTORY
On February 15, 1997 appellant, then a 45-year-old rural letter carrier, injured his left
foot while walking on his route. The Office accepted his claim for left foot plantar fasciitis,

fibromatosis, and strain; left ankle strain; and aggravation of L4-5 disc aggravation.
March 20, 2000 appellant accepted a full-time light-duty position of modified clerk.

On

By decision dated September 22, 2000, appellant was issued a schedule award for 37
percent permanent impairment of his left leg. He was awarded pay for 106.56 weeks from
September 1, 2000 to September 16, 2002.
On October 2, 2002 the Office paid appellant $822.29 as wage-loss compensation for the
period September 17 to October 2, 2002. On October 18, 2002 appellant notified the Office that
he had received a payment that he did not understand because he was working in a full-time
capacity.
On October 22, 2002 the Office made a preliminary finding that an overpayment of
$822.29 had occurred when it erroneously placed appellant on the periodic rolls, and that
appellant was not at fault in its creation. The Office offered appellant the opportunity to seek
waiver of the overpayment.
On October 31, 2002 appellant requested waiver of the overpayment. He reported that
his gross monthly income was $8,400.00. Appellant stated that his monthly expenses included
$1,100.00 for housing, $500.00 for food, $280.00 for utilities and $325.00 for other expenses.
He stated that he and his spouse had approximately $500.00 in cash, $7,000.00 in a checking
account, $25,000.00 in a savings account, and $9,000.00 in stocks and bonds, for a total of
$41,500.00 in funds.
By decision dated April 17, 2007, the Office finalized its preliminary determination that
an overpayment of $822.29 had occurred because the Office erroneously issued compensation
for loss of wages for a period in which appellant was employed without wage loss. On
consideration of the evidence appellant submitted, it denied his request for waiver, finding that
recovery of the overpayment would not be against equity or good conscience. The Office stated
that appellant should repay the overpayment by writing a check for the full amount.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides that the United States shall pay
compensation for the disability or death of an employee resulting from personal injury sustained
while in the performance of his duty.1 The Office regulations state that benefits are available
only while the effects of a work-related condition continue. Compensation for wage loss due to
disability is available only for periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.2

1

5 U.S.C. §§ 8101-8193, 8102(a).

2

20 C.F.R. § 10.500(a).

2

ANALYSIS -- ISSUE 1
On October 2, 2002 the Office mistakenly placed appellant on the periodic rolls for
wage-loss compensation while he was employed and issued him payment in the amount of
$822.29 for the period September 17 to October 2, 2002. During the entirety of the period
covered by this payment, appellant was employed in a full-time position and had no wage loss.
The record therefore establishes that appellant was not entitled to the October 2, 2002 payment
from the periodic rolls. The Board finds that, as appellant was employed with no lost wages
during the period for which he received wage-loss compensation, the Office correctly determined
that appellant was overpaid in the amount of $822.29.
LEGAL PRECEDENT -- ISSUE 2
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment.3 If the Office finds that the
recipient of an overpayment was not at fault, repayment will still be required unless:
(1) adjustment or recovery of the overpayment would defeat the purpose of the Act or;
(2) adjustment or recovery of the overpayment would be against equity and good conscience.4
Recovery of an overpayment will defeat the purpose of the Act if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from
whom the Office seeks recovery needs substantially all of his or her current income (including
compensation benefits) to meet current ordinary and necessary living expenses; and (b) the
beneficiary’s assets do not exceed a specified amount as determined by the Office from data
furnished by the Bureau of Labor Statistics. A higher amount is specified for a beneficiary with
one or more dependents.5 Recovery of an overpayment is considered to be against equity and
good conscience when any individual who received an overpayment would experience severe
financial hardship in attempting to repay the debt.6 Recovery of an overpayment is also
considered to be against equity and good conscience when any individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes
his or her position for the worse.7
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of the Act or be

3

20 C.F.R. § 10.433(a).

4

20 C.F.R. § 10.434.

5

20 C.F.R. § 10.436.

6

20 C.F.R. § 10.437(a).

7

20 C.F.R. § 10.437(b).

3

against equity and good conscience.
repayment schedule, if necessary.8

This information will also be used to determine the

ANALYSIS -- ISSUE 2
On October 31, 2002 appellant reported that his gross monthly income was $8,400.00.
He listed monthly expenses totaling $2,205.00, including $1,100.00 for housing, $500.00 for
food, $280.00 for utilities and $325.00 for other expenses. Appellant stated that he and his
spouse had approximately $500.00 in cash, $7,000.00 in a checking account, $25,000.00 in a
savings account and $9,000.00 in stocks and bonds, for a total of $41,500.00 in assets.
Office procedures provide that an individual is deemed to need substantially all of his or
her income to meet current ordinary and necessary living expenses if monthly income does not
exceed monthly expenses by more than $50.00, i.e., the amount of monthly funds available for
debt repayment is the difference between current income and adjusted living expenses plus
$50.00.9 Appellant’s monthly income of $8,400.00 exceeds his monthly expenses of $2,205.00
by $6,195.00, well in excess of the $50.00 base provided in Office procedures. Because
appellant’s monthly income is sufficient to meet his monthly expenditures, it was not necessary
for the Office to make a finding about appellant’s assets. The Board, therefore, finds that the
Office properly concluded that recovery of the overpayment would not cause financial hardship
to appellant or defeat the purpose of the Act. Furthermore, appellant made no argument that he
gave up a valuable right or changed his position for the worse in reliance on the overpaid
compensation. The Office properly determined that recovery would not be against equity and
good conscience.
On appeal, appellant questioned the period of time that the Office waited before making a
final determination about the overpayment. The Board notes that the Act and its implementing
regulations do not contain a time limitation for recovery of overpayments. As discussed above,
the only grounds for waiver are where repayment would defeat the purpose of the Act or be
against equity and good conscience. Appellant has not alleged that circumstances have changed
since he completed his questionnaire in October 2002 such that recovery would now be
inappropriate. Specifically, he has not alleged that he now needs substantially all of his income
to meet ordinary and necessary living expenses, that he would experience severe financial
hardship in attempting to repay the debt, or that he gave up a valuable right or changed his
position for the worse. Therefore, the Board finds that the Office properly denied waiver of the
overpayment and is required by law to recover the debt.10

8

20 C.F.R. § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

9

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6200.6(a)(3)(3) (October 2004).
10

With respect to the recovery of the overpayment, the Board notes that its jurisdiction is limited to reviewing
those cases where the Office seeks recovery from continuing compensation benefits under the Act. As the record
does not indicate that appellant is receiving continuing compensation benefits, the Board does not have jurisdiction
over the Office’s decision to recover the overpayment by requiring appellant to remit a check for $822.29. Levon H.
Knight, 40 ECAB 658 (1989).

4

CONCLUSION
The Board finds that appellant received an overpayment in compensation in the amount
of $822.29 and that the Office properly denied waiver of the recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 17, 2007 is affirmed.
Issued: February 12, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

)
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)
)
)
)
)
)

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

Docket No. 09-2188
Issued: May 4, 2010

Case Submitted on the Record

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

JURISDICTION
On August 31, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated July 1, 2009. Under 20 C.F.R. § 501.3(e), the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a left ganglion cyst condition in the performance
of duty.
FACTUAL HISTORY
On August 13, 2008 appellant, a 35-year-old mail carrier, filed an occupational disease
claim alleging that she developed a ganglion cyst causally related to her federal employment.
On August 19, 2008 the Office advised appellant that it required factual and medical
evidence to determine whether she was eligible for compensation benefits. It asked her to submit
a comprehensive report from a treating physician describing her symptoms, the medical reasons

for her condition, and an opinion as to whether her claimed condition was causally related to her
federal employment. The Office requested that appellant submit this evidence within 30 days.
Appellant did not respond.
By decision dated October 6, 2008, the Office denied appellant’s claim, finding that she
failed to submit sufficient medical evidence to establish that she sustained a left ganglion cyst
condition due to her employment.
On October 14, 2008 appellant submitted a July 10, 2008 x-ray report of her left wrist.
The report listed under clinical information “repetitive motion.” The x-ray results showed no
fracture or dislocation and found that the soft tissues were normal. Appellant also submitted an
August 26, 2008 treatment note from an unidentified physician who advised that appellant had
surgery on her left wrist which required that she be placed off work from July 22 to
August 27, 2008. The signature on the note is not legible.
In an August 26, 2008 report, Dr. Aaron Pelletier, a specialist in surgery, stated that he
examined appellant two weeks after her surgery for excision of a left wrist volar ganglion cyst.
He stated that she was doing well without complaint except for some intermittent pain radiating
down her palm and some tightness in her fingers. On examination, appellant’s incision was well
healed with a moderate amount of residual edema, good flexion, extension, and radial and ulnar
deviation of her wrist. Dr. Pelletier also noted good flexion and extension of her fingers with
good grip and pinch strength. He advised that appellant should be able to return to her usual job
as a mail carrier the following day. Dr. Pelletier stated that her postoperative swelling would
continue to subside with expected alleviation of her symptoms.
In a July 22, 2008 report, Dr. Daniel P. Mass, Board-certified in orthopedic surgery,
listed a history that appellant had noticed increased swelling on the volar aspect of her left wrist
approximately two to three weeks previously. Appellant was unable to recall any specific
inciting trauma but had noticed increasing wrist pain which she believed was aggravated by her
work. Dr. Mass noted a history of osteoarthritis. On examination, there was a multilobulated
mass on the volar aspect of the left wrist which exhibited minimal tenderness to palpation.
Dr. Mass diagnosed a volar ganglion of the left wrist. Appellant had surgery to remove the left
ganglion cyst on her left wrist on August 14, 2008.
On October 10, 2008 appellant requested an oral hearing, which was held on
April 14, 2009.
By decision dated July 1, 2009, an Office hearing representative affirmed the October 6,
2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
1

5 U.S.C. §§ 8101-8193.

2

was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.2 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.3
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 employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed left ganglion cyst condition and his
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.5
ANALYSIS
Appellant has attributed a left wrist ganglion cyst to her federal employment. The record
reveals that she underwent surgery on August 14, 2008.
Appellant submitted reports from Dr. Pelletier and Dr. Mass, who noted findings of pain
and swelling on the volar aspect of her left wrist and diagnosed a left ganglion cyst. Neither of
the physicians, however, provided a rationalized medical opinion addressing how the left wrist
ganglion cyst was caused by appellant’s work as a letter carrier.

2

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

3

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

4

Id.

5

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

On July 22, 2008 Dr. Mass reported the history that appellant had noticed her wrist
became more painful, but did not know of any specific trauma. He found a multilobulated mass
on the volar aspect of the left wrist and diagnosed a volar ganglion cyst. Dr. Mass noted
appellant’s belief that her condition was aggravated by her work. However, he did not address
the issue of causal relation or explain how appellant’s work would cause or contribute to the
diagnosed condition. Dr. Mass’ report is of limited probative value as it does not contain any
medical rationale explaining how appellant’s job duties caused the left wrist ganglion cyst. He
did not provide an adequate medical opinion to establish that appellant’s claimed condition is
causally related to her employment.
Dr. Pelletier examined appellant two weeks after her left wrist surgery and found that she
was well healed with a good range of motion and strength. He advised that she had intermittent
pain radiating down her palm and some tightness in her fingers. Dr. Pelletier released her to
return to work at her usual job. His report is of limited probative value, however, it does not
contain any medical explanation on how or why appellant’s left ganglion cyst condition was
related to factors of her federal employment.6 The weight of medical opinion is determined by
the opportunity for and thoroughness of examination, the accuracy and completeness of the
physician’s knowledge of the facts of the case, the medical history provided the care of analysis
manifested and the medical rationale expressed in support of stated conclusions.7 Dr. Pelletier
did not provide any description of appellant’s job duties or explain the medical process through
which such duties would be competent to cause the claimed condition.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
CONCLUSION
The Board finds that appellant failed to establish that her left wrist ganglion cyst
condition was sustained in the performance of duty.

6

William C. Thomas, 45 ECAB 591 (1994).

7

See Anna C. Leanza, 48 ECAB 115 (1996).

8

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the July 1, 2009 decision of the Office of Workers’
Compensation Programs be affirmed.
Issued: May 4, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, CARSON NATIONAL FOREST,
Taos, NM, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0548
Issued: March 15, 2022

Case Submitted on the Record

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

On February 9, 2021 appellant filed a timely appeal from an August 19, 2020 nonmerit
decision of the Office of Workers’ Compensation Program (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 21-0548.1
This case was previously before the Board on an unrelated issue. 2 The facts and
circumstances as set forth in the Board’s prior decision is incorporated herein by reference. The
relevant facts are as follows.
On November 12, 1987 appellant, then a 31-year-old firefighter, filed a traumatic injury
claim (Form CA-1) alleging that on November 9, 1987 he slipped and fell on wet leaves while in
the performance of duty. He stopped work that day. OWCP accepted the claim for cervical strain,

1

The Board notes that, following the August 19, 2020 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2

Docket No. 14-0549 (issued June 11, 2014).

low back strain, and left deltoid muscle tear. It paid appellant wage -loss compensation on the
supplemental rolls effective December 26, 1987.
By decision dated March 13, 1996, OWCP issued a loss of wage-earning capacity (LWEC)
determination based on appellant’s ability to earn wages in the constructed position of food
assembler, Dictionary of Occupational Titles (DOT) No. 319.484-010. The position had a light
strength level and required the ability to push, pull or lift up to 10 pounds frequently , and up to 20
pounds occasionally. OWCP continued to pay appellant compensation based upon his wage earning capacity on the periodic rolls effective March 31, 1996.
On May 5, 2015 appellant requested modification of the March 13, 1996 LWEC
determination. By decision dated April 4, 2018, OWCP denied modification of its March 13, 1996
LWEC determination. It accorded the special weight of the medical opinion evidence to the
February 13, 2017 report of Dr. Paul Saiz, a Board-certified orthopedic surgeon, who had
conducted an impartial medical evaluation to resolve the conflict of medical opinion concerning
appellant’s work capacity. Dr. Saiz opined that appellant’s medical condition had not worsened
and that he remained capable of performing the duties of a food assembler.
On January 14, 2019 appellant requested reconsideration. By decision dated March 6,
2019, OWCP denied modification.
On August 4, 2020 appellant again requested reconsideration. Evidence of record
following OWCP’s March 6, 2019 decision included reports from Dr. Pamela Black, a Boardcertified physiatrist, dated February 27, March 19, April 3 and 23, June 5, and August 6, 2019,
which noted appellant’s physical examination findings. Medical reports from Dr. Thomas Whalen,
a Board-certified internist and anesthesiologist, were also received dated February 24, March 16,
and April 15, 2020 which related appellant’s physical examination findings and concluded that
appellant was unable to return to work. In a May 1, 2020 report, Dr. Whalen noted her current
symptoms and concluded that she was unable to return to work.
By decision dated August 19, 2020, OWCP summarily denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
The decision failed to mention or discuss the evidence received following its March 6, 2019
decision.
The Board, having duly considered the matter, concludes that the case is not in posture for
decision.3
Modification of an LWEC determination is warranted if 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 erroneous. 4 The burden of proof is
on the party seeking modification of the wage-earning capacity determination. 5 Unlike
3

C.H., Docket No. 19-1114 (issued April 30, 2020); B.H., Docket No. 18-1515 (issued June 20, 2019);
N.M., Docket No. 17-0262 (issued July 3, 2017).
4

20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part 2
-- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
5

Id. at § 10.511.

2

reconsideration pursuant to 5 U.S.C. § 8128(a), there is no time limitation for requesting
modification of an LWEC determination. 6 Requests for modification should be reviewed carefully
to determine whether the claimant is seeking a reconsideration of a recently issued LWEC
determination, as opposed to a modification of the LWEC determination. 7
The Board finds that appellant’s request for reconsideration was, in fact, a request for
modification of the March 13, 1996 LWEC determination. Appellant set forth evidence that his
restrictions had changed and that he was rendered totally disabled. It is well established that a
claimant may establish that a modification of an LWEC determination is warranted if there has
been a showing that there was, in fact, a material change in the nature and extent of h is injuryrelated condition. 8
The Board has held that when an LWEC determination has been issued and appellant
submits evidence with respect to one of the criteria for modification OWCP must evaluate the
evidence to determine if modification is warranted. 9
As OWCP improperly summarily reviewed the case under the standard for an untimely
reconsideration request, the case must be remanded to OWCP for a proper decision which includes
findings of fact and a clear and precise statement regarding whether appellant h as met his burden
of proof to establish modification of his LWEC determination. 10 Following any further
development as deemed necessary, OWCP shall issue a de novo decision.

6

J.J., Docket No. 21-0479 (issued November 29, 2021); W.W., Docket No. 09-1934 (issued February 24, 2010);
Gary L. Moreland, 54 ECAB 638 (2003).
7

Supra note 4 at Chapter 2.1501.4a (June 2013).

8

See L.M., Docket No. 20-1038 (issued March 10, 2021); see also C.R., Docket No. 14-0111 (issued April 4, 2014);
Sharon C. Clement, 55 ECAB 552 (2004).
9

See W.B., Docket No. 21-0272 (issued August 4, 2021); L.P., Docket No. 18-1429 (March 8, 2019).

10

See L.H., Docket No. 18-1787 (issued July 29, 2019); R.Z., Docket No. 17-1455 (issued February 15, 2019).

3

IT IS HEREBY ORDERED THAT the August 19, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 15, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Irwin, CA, Employer
__________________________________________

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

Docket No. 13-599
Issued: June 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 17, 2013 appellant filed a timely appeal of a July 25, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP), denying her application for
reconsideration without merit review of the claim. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the July 25, 2012 nonmerit decision. Since more than 180 days has elapsed between the last
merit decision on March 26, 2012 and the filing of this appeal, the Board lacks jurisdiction to
review the merits of the claim pursuant to 20 C.F.R. § 501.3(e).
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant a review of the merits of her claim for compensation
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 29, 2011 appellant, then a 64-year-old transportation assistant, filed an
occupational claim (Form CA-2) alleging that she sustained carpal tunnel syndrome as a result of
her federal employment. She indicated on the claim form that she used the computer to work on
spreadsheets and monthly reports.
By decision dated January 5, 2012, OWCP denied the claim for compensation. It stated
that it accepted the employment factors alleged, but found the medical evidence was insufficient
to establish the claim. Appellant requested reconsideration and submitted a report from
Dr. Eugene Farng, an orthopedic surgeon, indicating that she underwent a right carpal tunnel
release, with ring/middle finger trigger injections, on December 19, 2011.
In a decision dated March 26, 2012, OWCP reviewed the merits of the claim.2 It found
that the medical evidence did not establish causal relationship between a diagnosed condition
and federal employment.
On May 9, 2012 appellant requested reconsideration. She submitted a factual statement
describing her job duties, stating that the majority of her time was spent on computers and she
sometimes worked overtime. The record also contains partial statements signed by coworkers on
April 30, 2012.3 Appellant submitted the initial page of a December 15, 2011 report indicating
that she received treatment from Dr. Farng, with diagnoses of carpal tunnel syndrome and trigger
finger.
By decision dated July 25, 2012, OWCP denied the request for reconsideration without
review of the merits of the claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or (iii)
constitutes relevant and pertinent evidence not previously considered by OWCP.”5 20 C.F.R.
§ 10.608(b) states that any application for review that does not meet at least one of the

2

The cover letter of the decision states that the merits of the claim were reviewed, the conclusion states that the
evidence was insufficient to warrant modification and the discussion of evidence clearly indicates OWCP reviewed
the merits of the claim. The discussion under the heading “basis for decision” incorrectly indicates that appellant
did not meet the standards for reopening the case for merit review.
3

These documents appear to be the final page of identical statements describing job duties.

4

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
5

20 C.F.R. § 10.606(b)(2).

2

requirements listed in 20 C.F.R. § 10.606(b)(2) will be denied by OWCP without review of the
merits of the claim.6
ANALYSIS
In the present case, appellant filed a claim alleging that she sustained carpal tunnel
syndrome as a result of repetitive hand movements in her federal employment. OWCP denied
the claim on the grounds that the medical evidence was insufficient to establish the claim for
compensation. To require it to review the merits of the claim on reconsideration, appellant must
meet one of the standards noted above.
The application for reconsideration in this case did not show that OWCP erroneously
applied or interpreted a specific point of law. Appellant did not discuss a specific point of law or
present evidence of error in the application or interpretation of a specific point of law. In
addition, she did not advance a relevant legal argument not previously considered by OWCP.
Appellant did not raise a relevant legal argument with her application for reconsideration.
With respect to the submission of relevant and pertinent evidence not previously
considered by OWCP, the Board finds appellant did not meet this standard. The claim for
compensation was denied on the grounds that the medical evidence did not establish causal
relationship between a diagnosed condition and the identified employment factors. The medical
evidence previously submitted prior to the March 26, 2012 merit decision indicated that
appellant underwent a right carpal tunnel release, with ring/middle finger trigger injections, on
December 19, 2011. The evidence submitted on reconsideration included the first page of a
report from Dr. Farng dated December 15, 2011, providing diagnoses of carpal tunnel syndrome
and trigger finger. This evidence is incomplete and does not address the medical issue presented
or provide new and relevant information. It does not constitute new, relevant and pertinent
evidence.
OWCP accepted that appellant’s federal employment involved repetitive activity with
computer entry. The factual evidence submitted with respect to job duties does not constitute
new, relevant and pertinent evidence.7 While appellant is not required to submit medical
evidence that is sufficient to establish the claim, she must submit new and relevant evidence on
the medical issue presented to require OWCP to reopen the claim for merit review.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). 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 submit
relevant and pertinent evidence not previously considered by OWCP. Pursuant to 20 C.F.R.
§ 10.608(b), OWCP properly declined to reopen the case for merit review.
6

20 C.F.R. § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994). In the present case, the “merits” of
the claim would be the termination of compensation effective October 13, 2011.
7

See D.K., 59 ECAB 141 (2007) (evidence submitted on reconsideration that does not address the underlying
medical issue is not relevant evidence); see also R.P., Docket No. 11-500 (issued September 12, 2011) (factual
statements not relevant to medical issue on causal relationship).

3

On appeal, appellant states that she was not initially told about a CA-35H form, and this
form required her complete work history and she had only reported her work experience at the
current work site. She stated that she had worked for the Federal Government for 34 years in
clerical jobs. As noted above, the issue on appeal was whether appellant’s application for
reconsideration was sufficient to warrant a merit review of the claim. The underlying issue with
respect to her claim was a medical issue, and for the reasons stated above her application for
reconsideration was not sufficient to require a merit review.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant a review of the merits of her claim for compensation.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 25, 2012 is affirmed.
Issued: June 10, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4