United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, FORT DEARBORN
STATION, Chicago, IL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1438
Issued: December 21, 2016

Case Submitted on the Record

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

JURISDICTION
On July 5, 2016 appellant, through counsel, filed a timely appeal from a June 1, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish total disability for
intermittent dates from August 26 to December 20, 2013, causally related to her accepted right
wrist tendinitis.
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.

On appeal counsel asserts that the June 1, 2016 decision is contrary to fact and law.
FACTUAL HISTORY
On April 25, 1996 OWCP accepted that appellant, then a 38-year-old sorting machine
operator, sustained work-related right wrist tendinitis causally related to factors of her federal
employment. Appellant began modified duty and missed intermittent periods from work. In
September 2002, she began treatment with Dr. Steven Wolf, an attending Board-certified
orthopedic surgeon.
In a November 10, 2012 report, Dr. Wolf noted that appellant was under his care for a
many-year history of right arm and wrist pain with symptoms of mild swelling and grip strength
weakness that had slowly worsened over the past year. He diagnosed right wrist chronic
tendinitis and overuse syndrome. Dr. Wolf provided restrictions of no pushing and pulling, and
no lifting over 10 pounds regularly or 30 pounds intermittently. Casing of mail was restricted to
four hours in an eight-hour shift.
On November 12, 2012 appellant accepted a full-time modified position with duties of
distributing mail for up to six hours daily, scanning and filing mail for up to four hours daily,
spreading mail into carrier cases for two to three hours daily, and miscellaneous duties within
restrictions for two to three hours daily.3
Appellant began filing claims for intermittent periods of wage loss in March 2013 CA-7
forms. By decision dated September 24, 2013, OWCP found that appellant did not establish a
recurrence of disability commencing on July 15, August 5, and 9, 2013 because the medical
evidence of record did not establish a change in the accepted injury-related condition or in the
nature and extent of her job requirements.
Appellant retired on disability, effective December 20, 2013. On December 26, 2013 she
filed a claim for compensation (Form CA-7) for intermittent dates during the period August 26 to
December 20, 2013.4 Appellant had previously submitted an August 29, 2013 treatment note in
which Dr. Wolf noted that her right wrist swelling had resolved, and that she had mild pain on
flexion and extension of the wrist. Dr. Wolf diagnosed tenosynovitis of hand and wrist and
advised that appellant was unable to perform modified work duties involving hand and wrist
movement from July 15 to 19, 2013, on July 30, 2013, and from August 5 through 18, 2013. He
reported that she had also recovered from a recent motor vehicle accident with a neck and head
injury. Dr. Wolf concluded that she should continue to follow her work restrictions. In a
September 4, 2013 report, he described his treatment of appellant. Dr. Wolf advised that her
work restrictions included no prolonged pulling, pushing, or lifting over 10 pounds continuously
or 30 pounds intermittently. Carrying was restricted to four hours daily. Dr. Wolf advised that
3

The Board notes that appellant has a second claim, adjudicated by OWCP under File No. xxxxxx024, in which
she alleged ongoing exposure to chemical irritants at work beginning in 2010. In an October 23, 2014 decision, the
Board affirmed a November 7, 2013 OWCP decision, finding that appellant did not establish a medical condition
caused or aggravated by workplace exposure. Docket No. 14-1178 (issued October 23, 2014). On September 3,
2015 the Board found that OWCP properly denied appellant’s request for merit review under 5 U.S.C. § 8128(a).
Docket No. 15-1375 (issued September 3, 2015). File No. xxxxxx024 is not presently before the Board.
4

A Form CA-7a documents the intermittent days claimed.

2

repetitive movements of fingers and wrists were painful, and would cause renewed disability due
to right wrist and hand swelling, sensitivity, and pain. He concluded that he recommended
disability retirement.
By letter dated January 10, 2014, OWCP informed appellant of the evidence needed to
establish her claim. On January 13, 2014 Dr. Wolf prescribed physical therapy.5
In a March 14, 2014 decision, OWCP denied appellant’s claim for compensation for the
period August 26 to December 20, 2013. It noted that she had not submitted a response to the
January 10, 2014 development letter, and the only evidence received was in regard to physical
therapy.
Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings
and Review. She submitted a January 7, 2014 report in which Dr. Wolf advised that appellant
had “been ill or injured and unable to work” on the following days: October 25, November 12,
13, 15, 30, and December 2, 5, 7, 9, 11, 14, 16, and 20, 2013, for a diagnosis of chronic right
wrist tendinitis.
In a November 30, 2015 report, received by OWCP on January 7, 2016, Dr. Wolf
reported that appellant had reached maximum medical improvement with regard to her right
wrist condition and was under no active treatment. He advised that she could not return to work.
On February 8, 2016 Dr. Wolf diagnosed chronic tenosynovitis of the right hand and wrist,
overuse syndrome, and chronic anxiety. He advised that the conditions were still present, were
not expected to resolve, and were disabling. Dr. Wolf continued that appellant could not return
to her full-time, limited-duty job due to her inability for prolonged pushing/pulling, lifting over
10 pounds continuous or carrying over four hours per day during an eight-hour day, noting that
repetitive movements of fingers and wrists were painful and limited her workplace functioning.
He advised that current treatment included rest, stress avoidance, home exercise, wrist splint use,
medication, and physical therapy when needed. Dr. Wolf concluded that appellant was
permanently disabled for all work.
At the March 21, 2016 hearing, appellant testified that she stopped work and went on
disability retirement in 2013 because her modified duties and activities of daily living caused
right wrist pain. She also stated that she was forced to work outside her restrictions.
By decision dated June 1, 2016, an OWCP hearing representative found that appellant
submitted insufficient medical evidence to establish her claim for disability compensation for the
period August 26 to December 20, 2013 and affirmed the March 14, 2014 decision.
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden of proof to establish by
the weight of reliable, probative, and substantial evidence a recurrence of total disability. As part
5

Appellant also submitted physical therapy treatment notes. The record also includes medical evidence regarding
appellant’s claim for exposure to chemical irritants, adjudicated by OWCP under File No. xxxxxx024. Supra note 3.

3

of this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.6
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she was
totally disabled for intermittent periods between August 26 and December 20, 2013 caused by
the accepted right wrist tendinitis. OWCP accepted the right wrist claim on April 25, 1996.
Appellant performed modified work and missed intermittent periods until she claimed additional
total disability compensation beginning August 26, 2013.
Medical opinion evidence submitted by appellant, to support her claim for compensation,
should reflect a correct history and offer a medically-sound explanation by the physician of how
the modified duties she was performing when she stopped work and physiologically caused or
aggravated the accepted right wrist tendinitis.7 Appellant submitted insufficient evidence in this
case.
The record indicates that appellant began treatment with Dr. Wolf in September 2002. In
a November 10, 2012 report, Dr. Wolf advised that her condition had slowly worsened over the
past year. He diagnosed right wrist chronic tendinitis and overuse syndrome. Dr. Wolf provided
restrictions of no pushing and pulling, and no lifting over 10 pounds regularly or 30 pounds
intermittently. Casing of mail was restricted to four hours in an eight-hour shift. On August 29,
2013 Dr. Wolf advised that appellant was unable to perform modified work duties involving
hand and wrist movement for periods from July 15 to August 18, 2013. He also reported that she
had a recent motor vehicle accident with a neck and head injury, from which she had recovered,
and concluded that she should continue to follow her work restrictions.
On September 4, 2013 Dr. Wolf described work restrictions of no prolonged pulling,
pushing, or lifting over 10 pounds continuously or 30 pounds intermittently. Carrying was
restricted to four hours daily. Dr. Wolf advised that repetitive movements of fingers and wrists
would cause renewed disability due to right wrist and hand swelling, sensitivity, and pain. He
recommended disability retirement. In a January 7, 2014 report, Dr. Wolf merely advised that
appellant had “been ill or injured and unable to work” on the following days: October 25,
November 12, 13, 15, 30, and December 2, 5, 7, 9, 11, 14, 16, and 20, 2013, for a diagnoses of
chronic right wrist tendinitis.
The medical reports of Dr. Wolf do not exhibit specific knowledge of the modified duties
appellant was performing prior to the period of claimed disability. He did not provide an
explanation regarding why her restrictions changed between October 2012 and August 2013.
Dr. Wolf also did not discuss with any detail appellant’s motor vehicle accident in the summer of
2013. While he later advised on November 30, 2015 and February 8, 2016 that appellant could
not return to work at that time, he did not discuss the period of claimed disability that ended on
December 20, 2013 when appellant retired on disability. To meet her burden of proof, the
6

Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
7

Id.

4

medical evidence submitted should reflect a correct history, and the physician should offer a
medically-sound explanation of how the specific duties appellant performed in her modified
position caused or aggravated the claimed condition such that she became totally disabled.8
The Board concludes that Dr. Wolf’s opinion is of insufficient rationale to establish that
appellant was totally disabled from her modified duties for intermittent periods from August 26,
2013 until she retired on December 20, 2013.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish total
disability for intermittent dates during the period August 26 to December 20, 2013 causally
related to her accepted right wrist tendinitis.
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 21, 2016
Washington, DC

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

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

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

8

See id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., widow of R.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
San Ysidro, CA, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0625
Issued: December 9, 2016

Case Submitted on the Record

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

JURISDICTION
On February 12, 2016 appellant, through counsel, filed a timely appeal from merit
decisions of the Office of Workers’ Compensation Programs (OWCP) dated September 10 and
December 11, 2015. Pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

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 appellant met her burden of proof to establish that the employee’s
death on December 18, 2012 was causally related to factors of his federal employment.
On appeal, counsel asserts that the record establishes that the employee encountered
work-related stress and that a conflict in medical evidence has been created regarding whether
stress contributed to his death.
FACTUAL HISTORY
Appellant, widow of the deceased employee, filed a claim for death benefits (Form
CA-5) on November 6, 2013.3 She alleged that acute and chronic stress led to the employee’s
coronary artery disease, hypertension, and left ventricle hypertrophy. At the time of his death on
December 18, 2012, the employee was a 47-year-old customs and border protection officer.
In support of her claim, appellant submitted the standard operating procedures for
inbound enforcement at the San Ysidro port of entry, the employee’s duty station. This
described job duties of officers as: identifying and/or interdicting contraband related to terrorism
and potential terrorists entering the United States; interdicting narcotics and other contraband;
identifying and interdicting alien smugglers/traffickers and fraudulent documents; identifying
and interdicting fugitives/persons of interest; and detection of agricultural products related to
bioterrorism. This included inspecting vehicles and pedestrians, and responding to calls for
assistance.
In a May 7, 2013 statement, N.C., a coworker, advised that she had worked with the
employee since 2009. She described border officers’ work and reported that beginning in 2012
the employee would tell her that he was getting stressed about the job. K.S., also a coworker,
submitted a statement dated June 13, 2013. He indicated that he witnessed the employee making
arrests, having to use force, and being in dangerous and stressful situations at work. K.S. stated
that all officers were subject to forced overtime, concluding that the work environment and
overtime situation caused undue stress on the employee and all officers at the employing
establishment. In a June 18, 2013 statement, T.W., another coworker, described border officers’
duties, noting that the employee was always in stressful situations, such as apprehending
narcotics smugglers and responding to vehicle chases. He concluded that the long hours and
danger were stressful.
An investigative report of the employee’s death was completed by Lenore Aldridge an
investigator with the Office of the Medical Examiner of the County of San Diego, California.
She indicated that on the morning of December 18, 2012 the employee complained of chest pain
and heartburn while at home, but proceeded to work and, while en route, at approximately 6:45
a.m., he lost control of his vehicle and collided with a guardrail. Sheriff’s deputies, California
Highway Patrol officers, and fire paramedics responded. The employee was transported to a

3

A copy of a certificate of marriage, issued by the State of California, indicated that appellant and the employee
married on March 11, 2000.

2

hospital where his death was pronounced shortly upon arrival. No obvious injuries were noted.
Ms. Aldridge described ante mortem and postmortem events.
An autopsy report was completed by Dr. Steven C. Campman, a Board-certified forensic
pathologist and deputy medical examiner, on December 19, 2012. He noted a cause of death of
atherosclerotic cardiovascular disease. The manner of death was listed as natural. Other
conditions listed were pulmonary edema and congestion, with no evidence of fatal trauma. The
death certificate indicated that the immediate cause of death was atherosclerotic cardiovascular
disease.
In a September 11, 2012 report, Dr. Robert McDonald, Board-certified in family
medicine, noted seeing the employee as a new patient with a history of asthma, acid reflux,
tension headaches, and low back pain. He reported that the employee had a 34-pack-a-year
smoking history and advised that migraine headaches were first diagnosed in 2002.
Dr. McDonald described physical examination findings. Laboratory studies on January 11,
2010, September 20, 2011, and September 24, 2012 described elevated cholesterol and
triglycerides. On December 5, 2012 Dr. McDonald reported seeing the employee for an annual
examination. He diagnosed progressive elevated cholesterol and triglycerides.
On September 9, 2013 Dr. Thomas E. Diggs, II, a Board-certified internist, reviewed the
employee’s medical records, statements by coworkers, and the employee’s job description. He
indicated that these factors created a highly stressful work environment. Dr. Diggs further noted
that the employee’s medical history was remarkable for heavy tobacco usage, hypertension, and
uncontrolled, high cholesterol which were serious risk factors for coronary artery disease, and
they certainly contributed to the development of his severe and premature three-vessel coronary
artery disease, noting that, if these problems were not addressed and treated, the incidence of
acute myocardial injury was increased. Dr. Diggs continued that, conversely, treating these
conditions slowed the progression of coronary artery disease and decreased the incidence of
acute cardiac events. He related that emotional stress and anxiety, both acute and chronic, had
been shown to cause coronary artery disease and exacerbate symptoms in patients who had
preexisting coronary disease. Dr. Diggs described study findings and concluded that, while the
employee had coronary artery disease, hypertension, and left ventricular hypertrophy, the acute
and chronic stress from his employment contributed to the development of these problems and
also led to their exacerbation, causing his death from a myocardial infarction. He attached a list
of reference publications. Several publications were submitted that were not those referenced by
Dr. Diggs.4
In letters dated November 22, 2013, OWCP asked appellant to submit any medical
evidence to show that the employee was being treated for a stress-related condition such as
anxiety, depression, or acute and chronic stress. The employing establishment was asked to

4

Appellant also submitted copies of awards and acknowledgements from the employing establishment, their
children’s birth certificates, and benefits the family received from the Department of Veterans Affairs, the Social
Security Administration, life insurance, and appellant’s retirement benefits following the employees’ death.

3

describe the work environment, provide a position description, and to respond to specific
questions regarding the employee’s job duties and assignments.5
In May 2014, OWCP referred the case record to Dr. David Southren, Board-certified in
internal medicine and cardiovascular disease, for a review to determine if the employee’s job
duties caused or contributed to the atherosclerotic cardiovascular disease that led to his death.
In a May 30, 2014 report, Dr. Southren noted his review of the record, including reports
by Dr. Petersen and Dr. McDonald and Dr. Diggs’ September 9, 2013 report, a description of the
employee’s job duties, and other statements. He advised that the employee’s relevant medical
history consisted of chronic hypertension, hyperlipidemia, and heavy cigarette use. Dr. Southren
described the events surrounding the employee’s death, noting the autopsy results. He advised
that the record indicated that the job duties of border officers included the potential for long
hours and risk of violence, and that the employee was frequently involved in situations that could
lead to stressful situations, and that he was described as a hard working officer who took his job
very seriously. Dr. Southren indicated that, despite this potentially high pressure environment,
the employee did not report anger, hostility, anxiety, depression, or any other adverse
psychological experience that could be associated with contribution to structural heart disease,
although even in this circumstance, the cause and effect upon an individual could not be defined.
He reported that the employee was a heavy smoker, had uncontrolled hyperlipidemia, and
evidence of severe, underlying (unrecognized) coronary artery disease and did not report any
symptoms to suggest job dissatisfaction, stress, anger, or hostility. Dr. Southren concluded that,
as such, the employee’s job duties did not seem to have contributed to his death. He also
provided a list of references.
By decision dated September 10, 2015, OWCP denied the claim because the evidence of
record failed to establish that the employee’s death was caused by any employment factors.
On September 15, 2015 appellant, through counsel, requested reconsideration, based on a
new legal argument. Counsel asserted that the statements from T.W., K.S., and N.C. supported
that the employee sustained employment-related stress. He further maintained that the
September 10, 2015 decision did not mention these witness statements.
Counsel forwarded additional evidence in October 2015. In a September 22, 2015
statement, P.S., another coworker, noted that she and the employee had numerous conversations
about the stress of their jobs and tremendous pressure they were under. She described job duties
5

The questions were: (1) Was the employee asked to perform any special assignment or duties which could be
perceived as especially stressful (e.g., overtime, deadlines, quotas, travel, intense assignments, any conflict between
appellant and coworkers or supervisors, etc.)? Please explain; (2) What accommodations had the employing
establishment made to reduce stress for the employee (e.g., reassignment, training, deadline adjustments, etc.);
(3) Was the employee generally able to perform required duties in accordance with expectations? Were there any
performance or conduct problems? Please describe; (4) Provide a copy of the employee’s position description and
physical requirements of the job. Explain how the actual duties varied from the official description. If his duties
changed over time, please explain; (5) When did the employee begin working for your agency? Please submit the
Form SF-50 or other documentation showing his enter on duty date and position information; (6) Did the employee
provide any indication that he was experiencing stress, anxiety, depression, or other psychological condition caused
by his federal employment?

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and reported that he complained of numerous ailments including back pain and physical
exhaustion and took ibuprofen as needed. In a September 25, 2015 statement, L.H., another
coworker, also described working with the employee. He indicated that as custom officers they
worked long shifts, and the employee had a long commute. L.H. commented that he and the
employee had multiple conversations regarding the overtime requirement of the job and the
physical and mental stress it placed on them with additional stress regarding producing results
while on the team.
In a September 22, 2015 statement, appellant reported that when the employee would
come home after work he would complain of headaches, foot, neck, upper and lower back pain,
and exhaustion, and that when he joined the anti-terrorism contraband enforcement team his
complaints increased. She described several incidents where the employee reported shots fired
and active pursuits, and it would take him time to decompress from his shift. Appellant indicated
that he was also fearful that someone would take revenge on his family and was considering
transferring to a less stressful location.
In a merit decision dated December 11, 2015, OWCP denied modification of the
September 10, 2015 decision. It noted review of all statements and found that, even if appellant
had of established that the employee experienced work-related stress, there was no unequivocal
medical evidence to support that this caused his death.
LEGAL PRECEDENT
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.6 An award of
compensation in a survivor’s claim may not be based on surmise, conjecture, or speculation or
on appellant’s belief that the employee’s death was caused, precipitated, or aggravated by the
employment.7 Appellant has the burden of establishing by the weight of the reliable, probative,
and substantial medical evidence that the employee’s death was causally related to an
employment injury or to factors of his employment.8 This burden includes the necessity of
furnishing rationalized medical opinion evidence of a cause and effect relationship, based on a
complete factual and medical background, showing causal relationship. The opinion of the
physician must be one of reasonable medical certainty and must be supported by medical
rationale.9
To establish her claim that the employee sustained stress in the performance of duty,
which precipitated his death, appellant must submit the following: (1) factual evidence
identifying and supporting employment factors or incidents alleged to have caused or contributed
to his condition; (2) rationalized medical evidence establishing that his death was due to or

6

5 U.S.C. § 8133(a).

7

See Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).

8

L.R. (E.R.), 58 ECAB 369 (2007).

9

Id.

5

aggravated by an emotional reaction; and (3) rationalized medical opinion evidence establishing
that the identified compensable employment factors were causally related to his death.10
The medical evidence required to establish causal relationship is rationalized medical
evidence. Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between an
employee’s diagnosed conditions and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the employee’s death and the accepted conditions or
employment factors identified by the employee.11
ANALYSIS
On November 6, 2013 appellant, widow of the employee who died on December 18,
2012, filed a claim for survivor’s benefits. She alleged that stressful factors of the employee’s
federal employment as a customs and border protection officer contributed to his death. The
cause of death, listed on the autopsy report and death certificate, was atherosclerotic
cardiovascular disease.
The Board finds this case is not in posture for decision. The Board accepts that the
employee’s job duties included stressful situations where he would be involved in identifying
and interdicting contraband, narcotics, smugglers, traffickers, and fugitives, would inspect
vehicles and pedestrians, and respond to calls for assistance. The Board, however, notes that the
employing establishment did not respond to the November 22, 2013 letter in which OWCP
requested further information regarding appellant’s specific job duties. By that letter, OWCP
asked the employing establishment to answer specific questions.12 While the record contains a
description of the employee’s duties at the employing establishment, its procedures provide that,
for development of factual evidence in claims, the employing establishment is required to
complete the reports and statements needed and then submit the evidence to OWCP.13 The
procedures continue that, in certain types of claims, such as performance of duty and/or stress
claims, a statement from the employing establishment is imperative to properly develop and
adjudicate the claim.14 Likewise, the procedures provide that, if the employing establishment has
factual evidence which is necessary to make a decision in the claim, the claims examiner should
make a written request to the employing establishment and that the employing establishment
should be advised that, if it fails to provide the requested information, a decision will be made on
the basis of available evidence and that the claimant’s statements, if sufficiently clear and
10

See Martha L. Watson, 46 ECAB 407 (1995).

11

Donna L. Mims, 53 ECAB 730 (2002).

12

Supra note 5.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7a(2)
(June 2011).
14

Id.

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detailed, may be accepted on matters of which the claimant is knowledgeable.15 The record
before the Board does not contain a statement of any representative at the employing
establishment in response to OWCP’s inquiry.
Proceedings under FECA are not adversarial in nature, and OWCP is not a disinterested
arbiter.16 While a claimant has the responsibility to establish entitlement to compensation, it
shares responsibility in the development of the evidence. OWCP has the obligation to see that
justice is done.17 In the case at hand, OWCP did not properly develop the claim as required by
its procedures. As noted, the record before the Board does not include employing establishment
responses to OWCP’s November 22, 2013 inquiry. In fact, the only description of the
employee’s job duties at San Ysidro port of entry was submitted by appellant, his widow.
Likewise, the many coworker statements were submitted by appellant or counsel and not by the
employing establishment.
The case will be remanded for OWCP to obtain the information requested of the
employing establishment in the November 22, 2013 letter. After this and such further
development deemed necessary, OWCP shall issue a de novo decision.18
CONCLUSION
The Board finds that this case is not in posture for decision.

15

Id. at Chapter 2.800.10.a (June 2011).

16

See Vanessa Young, 55 ECAB 575 (2004).

17

See Richard E. Simpson, 55 ECAB 490 (2004).

18

See J.M., Docket No. 15-1843 (issued December 28, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the December 11 and September 10, 2015
decisions of the Office of Workers’ Compensation Programs are set aside and the case is
remanded to OWCP for proceedings consistent with this opinion of the Board.
Issued: December 9, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

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

Docket No. 17-1727
Issued: July 9, 2018

Case Submitted on the Record

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

JURISDICTION
On August 7, 2017 appellant filed a timely appeal from a July 13, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.2
ISSUE
The issue is whether appellant met his burden of proof to establish a right shoulder injury
causally related to an accepted May 4, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its July 13, 2017 decision. The
Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On May 11, 2017 appellant, then a 36-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that, on May 4, 2017, he injured his right shoulder while lifting
a tray of mail. Appellant stopped work the next day and returned to work on June 13, 2017.
Appellant provided a May 5, 2017 note to his supervisor, D.B., in which he requested
emergency leave to see a doctor for severe shoulder pain. He noted that he could not lift or move
his right hand and that the pain began when he awoke. Although he took pain medication,
appellant was still in severe pain and needed to see an emergency doctor.
In a May 5, 2017 emergency department discharge form, Dr. Richard Wong, an emergency
medicine specialist, diagnosed rotator cuff impingement syndrome of appellant’s right shoulder.
General information about rotator cuff tendinitis was provided. Dr. Wong restricted appellant
from heavy lifting until cleared by his primary care physician.
In a May 6, 2017 note, Dr. Eduard Shnaydman, a family physician and osteopath, requested
that appellant be excused from work due to illness from May 6 to 13, 2017.
A May 7, 2017 accident report form noted the history of injury and that appellant had
finished his assignment and finalized his tour on May 4, 2017. It also indicated that he went to his
own treating physician on May 5, 2017. In a May 8, 2017 statement, acting supervisor, R.M.,
contended that appellant never reported an injury on May 4, 2017.
In May 11 and 18, 2017 duty status reports (Form CA-17) and an attending physician report
(Form CA-20), Elizabeth Thomas, a physician assistant, diagnosed appellant with right shoulder
tendinitis. Appellant was held off work and referred to physical therapy.3
A May 11, 2017 prescription note from Citimedical indicated that appellant was diagnosed
with right rotator cuff tendinitis.
In a June 6, 2017 development letter, OWCP informed appellant that when his claim was
first received it appeared to be a minor injury that resulted in minimal or no lost time from work.
As such, it administratively approved a limited amount of medical expenses without considering
the merits of the claim. OWCP since reopened appellant’s claim as appellant had not returned to
work in a full-time capacity. It requested that he provide additional medical evidence which
contained a physician’s opinion supported by a medical explanation as to how the reported work
incident caused or aggravated a medical condition. Appellant was afforded 30 days to provide the
necessary evidence.
OWCP received supplemental statements from appellant dated June 13 and 14, 2017.
In a May 11, 2017 initial report, Dr. Manuel Ceja, an internist, noted the history of
appellant’s May 4, 2017 employment incident and indicated that he had not returned to work since
3
Below Ms. Thomas’ signature on the form reports is a stamp indicating the name and address of “Manuel A. Ceja,
MD AME.” However, the form reports were not signed by the physician.

2

the incident. He provided an assessment of right shoulder pain and right shoulder impingement
syndrome. Dr. Ceja indicated that appellant was not fit for duty and was temporarily totally
disabled.
On May 18, 2017 Ms. Thomas completed CA-7 and CA-20 form reports wherein she
opined that appellant’s right shoulder tendinitis was a result of the employment activity of lifting
a heavy tray.
In May 18 and June 1, 2017 reports, Dr. Ceja provided an assessment of unspecified sprain
of right shoulder joint. He continued to opine that appellant was unfit for duty.
In a June 5, 2017 report, Dr. Ceja reported that the May 25, 2017 magnetic resonance
imaging (MRI) scan of appellant’s right shoulder revealed rotator cuff tear and suggested an
additional labral injury with associated bursitis. He continued to provide an assessment of
unspecified right shoulder joint sprain. Dr. Ceja indicated that appellant was fit for light duty and
had temporary total disability. A copy of the May 25, 2017 MRI scan was provided.
CA-7 medical forms dated June 1 and 13, 2017 and CA-20 attending physician forms dated
June 1, 5, and 13, 2017 were also provided. The reports were signed either by Dr. Ceja or a
physician with an illegible signature. The duty status reports and attending physician reports dated
June 1 and 5, 2017 indicated that appellant’s diagnosis of right shoulder tendinitis condition was
causally related to the employment activity of lifting a heavy tray. The June 13, 2017 duty status
and attending physician reports indicated that the diagnosed right rotator cuff tear was due to the
reported injury of lifting a heavy tray. On the CA-20 forms, Dr. Ceja noted with a check mark in
a box marked “yes” that appellant’s condition was caused or aggravated by an employment injury.
By decision dated July 13, 2017, OWCP denied appellant’s claim. It accepted that the
May 4, 2017 work incident occurred as alleged and that appellant had been diagnosed with right
shoulder conditions. However, OWCP found that the medical evidence of record was insufficient
to establish that appellant’s diagnosed conditions were causally related to the accepted
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence,5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which compensation is claimed is causally related
to that employment injury.6

4

Supra note 1.

5

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

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.7 There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.8 Second, the employee must submit evidence, generally
only in the form of probative medical evidence, to establish that the employment incident caused
a personal injury.9 An employee may establish that the employment incident occurred as alleged,
but fail to show that his or her disability or condition relates to the employment incident.10
Causal relationship is a medical question that generally requires the submission of
rationalized medical opinion evidence to resolve the issue.11 The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.12 The weight of the medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested, and the medical rationale
expressed in support of the physician’s opinion.13
ANALYSIS
The Board finds that appellant failed to establish that he sustained a right shoulder injury
causally related to the accepted May 4, 2017 employment incident.
Dr. Ceja initially evaluated appellant on May 11, 2017. He noted the history of the May 4,
2017 employment incident and diagnosed right shoulder pain and right shoulder impingement
syndrome. In subsequent reports, Dr. Ceja diagnosed unspecified sprain of right shoulder joint.
While Dr. Ceja accurately reported the history of the May 4, 2017 incident, he did not opine that
appellant’s right shoulder conditions were causally related to the May 4, 2017 employment
incident. The Board has held that medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship.14
While Dr. Ceja submitted Form CA-20 and Form CA-17 reports which opined that
appellant’s conditions of right shoulder tendinitis and right shoulder rotator cuff tear were due to
7

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

8

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

9

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

10

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

11

See Robert G. Morris, 48 ECAB 238 (1996).

12

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

13

James Mack, 43 ECAB 321 (1991).

14
C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

4

the work incident of lifting a heavy tray, those reports are also insufficient to establish appellant’s
claim as Dr. Ceja did not provide a rationalized explanation, supported by objective findings, to
establish whether or how the diagnosed conditions were caused or affected by the May 4, 2017
work incident. A medical report is of limited probative value on the issue of causal relationship if
it contains a conclusion regarding causal relationship which is unsupported by medical rationale.15
On the CA-20 forms he checked a box marked “yes” indicating that appellant’s diagnosed
conditions were caused or aggravated by his federal employment activity. The Board has held that
form reports which contain a box checked “yes” in support of causal relationship, without further
explanation or rationale, are insufficient to establish the claim.16
In the May 5, 2017 emergency department report, Dr. Wong diagnosed rotator cuff
impingement syndrome of the right shoulder. However, this report is also insufficient to establish
appellant’s claim as Dr. Wong did not provide an opinion on the cause of appellant’s right shoulder
condition.17
The MRI scan report of record is of limited probative value because it is a diagnostic test
which provides only interpretative data. The Board has held that reports of diagnostic tests are of
limited probative value as they fail to provide an opinion on the causal relationship between
appellant’s employment duties and the diagnosed conditions. For this reason, this evidence is
insufficient to meet appellant’s burden of proof.18
The medical form reports by physician assistant Ms. Thomas also fail to establish
appellant’s traumatic injury claim. Physician assistants are not considered physicians as defined
under FECA and their medical opinions regarding diagnosis and causal relationship are of no
probative value.19
The work excuse and prescription notes are not probative medical evidence as they do not
contain rationalized medical opinion that appellant’s diagnosed conditions were causally related
to his accepted May 4, 2017 employment incident.20
The Board, therefore, finds that appellant has not met his burden of proof to establish an
injury causally related to the accepted May 4, 2017 employment incident.

15

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (issued February 6, 2009).

16

See R.S., Docket No. 15-1834 (issued December 23, 2015).

17

See supra note 14.

18

See A.B., Docket No. 17-0301 (issued May 19, 2017).

19
5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005). Section 8102(2) of FECA provides that the term
physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law. See also R.H., Docket No. 16-1802 (issued
February 1, 2017) (physician assistants are not considered physicians under FECA).
20

See John W. Montoya, 54 ECAB 306 (2003).

5

On appeal appellant reiterates that he injured his right shoulder while lifting a heavy tray
of mail and was treated for same. The issue of causal relationship is a medical question that must
be established by probative medical opinion from a physician.21 As explained above, appellant
has not submitted such probative medical evidence in this case. Thus, the Board finds that he has
not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right shoulder
injury causally related to the accepted May 4, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 9, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

21

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, 57 ECAB 137 (2005).

6


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

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

Docket No. 21-0057
Issued: June 17, 2021

Case Submitted on the Record

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

JURISDICTION
On October 13, 2020 appellant filed a timely appeal from a June 12, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated March 14, 2019, 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 case.2
ISSUE
The issue is whether OWCP properly denied appellant’s March 17, 2020 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the June 12, 2020 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.

FACTUAL HISTORY
On October 24, 1996 appellant, then a 48-year old mail processor, filed an occupational
disease claim (Form CA-2) alleging that he developed bilateral carpal tunnel syndrome and left
ulnar neuropathy causally related to factors of his federal employment due to repetitive motions
including keying on a keyboard, sorting, filing, distributing mail, and loading/unloading mail since
October 15, 1992. OWCP accepted the claim for left ulnar nerve lesion and bilateral carpal tunnel
syndrome. The record reflects that OWCP paid appellant wage-loss compensation on the
supplemental rolls as of October 24, 1994 and on the periodic rolls as of June 16, 2002.
On December 11, 2018 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated December 27, 2018, OWCP advised appellant that his case
was accepted for bilateral carpal tunnel syndrome and a lesion of the left ulnar nerve, but no
medical evidence was received in support of his schedule award claim. It requested appellant to
submit a detailed narrative medical report from his treating physician, based upon a recent
examination, which related a date of maximum medical improvement (MMI) and which provided
a rating of permanent impairment with reference to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 OWCP
afforded appellant 30 days to submit the necessary evidence. No response was received.
By decision dated March 14, 2019, OWCP denied appellant’s claim for a schedule award
as the medical evidence was not sufficient to establish that he had reached MMI and that he had
sustained permanent impairment of a scheduled member or function of the body due to his
accepted work injury.
OWCP thereafter received additional medical evidence. In a report dated May 23, 2019,
Dr. Daniel R. Ignacio, a Board-certified physical medicine and rehabilitation specialist, diagnosed
bilateral carpal tunnel syndrome and ulnar nerve lesion from an injury that occurred at work on
October 15, 1992. He provided physical examination and range of motion (ROM) findings related
to appellant’s cervical spine, bilateral shoulders, left elbow, and left wrist.
On July 9, 2019 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. He submitted additional evidence with his request.
In a letter dated October 14, 2015, Dr. Rida N. Azer, an orthopedic surgeon, related that he
performed surgical procedures for treatment of appellant’s bilateral carpal tunnel syndrome and
left ulnar nerve conditions. He noted that further diagnostic studies would be performed and
thereafter appellant would be provided a permanent impairment rating under the A.M.A, Guides,
by an impairment committee.
On September 27, 2017 Dr. Azer examined appellant and diagnosed bilateral carpal tunnel
syndrome and a left ulnar nerve lesion, concluding that these conditions were caused by his work
injury on October 15, 1992. He noted that appellant requested a permanent impairment rating;
therefore, he would undergo further diagnostic studies. In a report dated October 13, 2017,
Dr. Azer stated that appellant remained in status quo and that he must remain off work.
3

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

2

By decision dated July 24, 2019, OWCP denied appellant’s request for review of the
written record by a representative of its Branch of Hearings and Review as it was not made within
30 days of the March 14, 2019 decision. It advised appellant that it had, in its discretion,
considered his request and had determined that the issue could be addressed by a request for
reconsideration.
Appellant submitted additional evidence to OWCP. In a letter dated July 10, 2019,
Dr. Ignacio related appellant’s physical examination findings including bilateral wrist and elbow
ROM measurements. He listed appellant’s diagnoses as chronic bilateral carpal tunnel syndrome,
bilateral chronic wrist tenosynovitis, chronic epicondylitis of the left elbow with ulnar neuritis,
bilateral complex regional pain syndrome of the upper limbs, and status post multiple surgeries of
the bilateral wrists and left elbow. Dr. Ignacio related that he would continue to treat appellant
conservatively. He concluded that appellant was totally and permanently disabled from work.
Appellant submitted a letter dated August 5, 2019 from Dr. Ignacio. Dr. Ignacio related
that he had conducted an electromyogram (EMG) that day, which revealed slowing of the median
nerve across appellant’s wrists and slowing of the left ulnar nerve and stable conduction block.
In a report dated September 18, 2019, Dr. Ignacio stated that appellant suffered with
intractable chronic and severe painful conditions, which were most likely incurable. He reported
appellant’s physical examination findings and indicated that appellant had severe left ulnar and
brachial median neuritis with failed multiple surgeries and complex regional pain syndrome in his
bilateral upper limbs. Dr. Ignacio noted that appellant would be referred for physical therapy.
On October 11, 2019 Dr. Ignacio related appellant’s physical examination findings and
noted that appellant required a new magnetic resonance imaging (MRI) scan of the left elbow and
wrist. He also noted that appellant would benefit from physical therapy to prevent progressive
pain, stiffness, spasm, weakness, and muscle atrophy.
In an MRI scan report dated October 11, 2019, Dr. Samir Chheda, a Board-certified
diagnostic radiologist, found a moderate enlargement of the median nerve within the carpal tunnel
of the right wrist. In an MRI scan report dated November 6, 2019, he related that appellant had
very small left elbow joint effusion.
On February 10, 2020 Dr. Vaul Phillips, a physical medicine and rehabilitation specialist,
diagnosed appellant with bilateral carpal tunnel syndrome, chronic tenosynovitis of the bilateral
wrists, chronic epicondylitis of the left elbow with ulnar neuritis, complex regional pain syndrome
of the bilateral upper limbs, and status post multiple bilateral wrist and left elbow surgeries. He
noted appellant’s physical examination findings, including ROM measurements of the left elbow
bilateral wrists, and noted that appellant would be referred for a permanent impairment evaluation.
On March 17, 2020 appellant requested reconsideration of the March 14, 2019 decision.
He submitted additional evidence with his request.
In a report dated February 8, 2006, Dr. William Dorn, an orthopedic surgeon, reported a
diagnosis of recurrent carpal tunnel syndrome and noted that appellant had elected to undergo
surgery.

3

On March 15, 2013 Dr. Azer reported that appellant had increasing pain, numbness, and
weakness in both hands. He related that appellant had undergone surgical procedures on the right
and left carpal tunnel and left ulnar nerve; however, he required further diagnostic studies as he
was developing bilateral median nerve palsy.
A hospital record dated June 4, 2013 from Dr. Azer noted that appellant had undergone
exploration of the left median nerve, right forearm, wrist and hand, division of the volar carpal
ligament and decompression of the left carpal tunnel, tenosynovectomy flexor tendons of the left
wrist and hand, and rerouting of the left ulnar nerve and tendon transfer between subcutaneous and
deep flexors at the elbow.
In a progress report dated June 16, 2014, Dr. Azer provided appellant’s continuing
symptoms. In a July 23, 2014 report, he related that appellant had increasing, pain, numbness, and
weakness in his right wrist and hand due to a work injury, which occurred on October 15, 1992.
By decision dated June 12, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. A request
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.5 Timeliness is determined by the document receipt date, i.e., the “received date”
in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).6 Imposition of this
one-year filing limitation does not constitute an abuse of discretion.7
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error.8 Its procedures provide that it will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s
request for reconsideration demonstrates clear evidence of error on the part of OWCP.9 In this

4

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

20 C.F.R. § 10.607(a).

6

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

7

L.M., Docket No. 20-0203 (issued March 10, 2021); G.G., Docket No. 18-1074 (issued January 7, 2019); E.R.,
Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).
8

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

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

4

regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.11 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error, but must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP.12
ANALYSIS
The Board finds that OWCP properly determined that appellant’s March 17, 2020 request
for reconsideration was untimely filed.13
OWCP’s regulations14 and procedures15 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.16
The most recent merit decision was OWCP’s March 14, 2019 decision. As appellant’s request for
reconsideration was received on March 17, 2020, more than one year after the March 14, 2019

10
J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
11

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

12

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

13
Initially, the Board finds that OWCP properly considered appellant’s March 17, 2020 correspondence as a request
for reconsideration and not as a claim for an increased schedule award as no impairment evaluation applying the sixth
edition of the A.M.A., Guides was submitted. See D.L., 20-0512 (issued November 30, 2020); K.W., Docket No.
19-0553 (issued November 8, 2019); B.W., Docket No. 18-1415 (issued March 8, 2019).
14
20 C.F.R. § 10.607(a); see J.W., Docket No. 18-0703 (issued November 14, 2018); Alberta Dukes, 56 ECAB
247 (2005).
15

Supra note 6 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

16

20 C.F.R. § 10.607(b); see A.M., Docket No. 20-0143 (issued October 28, 2020); Debra McDavid, 57 ECAB
149 (2005).

5

merit decision, the Board finds that it was untimely filed. Consequently, appellant must
demonstrate clear evidence of error on the part of OWCP in its March 14, 2019 decision.17
The Board further finds, however, that this case is not in posture for decision as to whether
appellant’s Mach 17, 2020 reconsideration request demonstrated clear evidence of error.
OWCP summarily denied appellant’s request for reconsideration without complying with
the review requirements of FECA and its implementing regulations.18 Section 8124(a) of FECA
provides that OWCP shall determine and make a finding of fact and make an award for or against
payment of compensation.19 OWCP’s regulations at 20 C.F.R. § 10.126 provide that the decision
of the Director of OWCP shall contain findings of fact and a statement of reasons.20 As well, its
procedures provide that the reasoning behind OWCP’s evaluation should be clear enough for the
reader to understand the precise defect of the claim and the kind of evidence which would
overcome it.21
In denying appellant’s March 17, 2020 reconsideration request, OWCP failed to analyze
the evidence or argument as to whether it was sufficient to demonstrate clear evidence of error. It
received numerous medical reports following the March 14, 2019 merit decision denying
appellant’s schedule award. The June 12, 2020 decision, however, simply found that appellant
had not demonstrated clear evidence of error because he had not provided medical evidence to
support a permanent impairment in accordance with the sixth edition of the A.M.A., Guides. It
provided no discussion relative to the medical evidence submitted.22
The Board finds that OWCP failed to properly explain the findings with respect to the issue
presented so that appellant could understand the basis for the decision, i.e., whether he had
demonstrated clear evidence that OWCP’s last merit decision was incorrect.23 The Board will,
therefore, set aside OWCP’s June 12, 2020 decision and remand the case for findings of fact and

17
Id. at § 10.607(b); see M.W., Docket No. 17-0892 (issued May 21, 2018); see S.M., Docket No. 16-0270 (issued
April 26, 2016).
18

T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607.

19

5 U.S.C. § 8124(a).

20

20 C.F.R. § 10.126.

21

See id.

22

See Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., Docket No. 19-0604 (issued
September 13, 2019); R.C., Docket No. 16-0563 (issued May 4, 2016).
23
OWCP’s regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s request demonstrates
clear evidence of error on the part of OWCP. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration,
Chapter 2.1602.5(a) (February 2016).

6

a statement of reasons, to be followed by an appropriate decision on appellant’s untimely
reconsideration request.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s March 17, 2020 request
for reconsideration was untimely filed. However, the Board further finds that the case is not in
posture for decision with regard to whether the untimely reconsideration request demonstrates
clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 12, 2020 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part. The case is remanded for further
proceedings consistent with this decision of the Board.
Issued: June 17, 2021
Washington, DC

Janice B. Askin, 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
__________________________________________
B.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alexandria, VA, Employer
__________________________________________
Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-1476
Issued: December 21, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On June 27, 2012 counsel filed a timely appeal from a May 25, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) affirming a June 8, 2010 decision denying
total disability compensation commencing July 27, 2009 related to an accepted bilateral foot
condition. The claim was docketed as No. 12-1476.
The Board has duly considered the matter and finds that this case is not in posture for
decision. By decision dated May 25, 2012, OWCP found that appellant had not established that
he was totally disabled for work on and after July 27, 2009 due to accepted bilateral plantar
fibromatosis as he submitted insufficient medical evidence. It referred to medical reports filed
under File No. xxxxxx781, accepted for bilateral plantar fasciitis. OWCP stated that medical
reports and a November 18, 2010 decision under File No. xxxxxx781 were reviewed in preparing
the May 25, 2012 decision. It noted that it accepted bilateral plantar fibromatosis under File
No. xxxxxx936 and combined that record under File No. xxxxxx366, the case now before the
Board. However, the record from File No. xxxxxx781 was not added to the doubled file under
No. xxxxxx366.
The record forwarded to the Board indicates that File No. xxxxxx781 contains evidence
relevant to File No. xxxxxx366 presently before the Board. The Board therefore finds this case
is not in posture for a decision, as the record before the Board is incomplete and would not

permit an informed adjudication of the case by the Board. Thus, the case must be remanded to
OWCP to combine the claim files. OWCP procedures provide for doubling claims when correct
adjudication of the issues depends on frequent cross-reference between files.1 Upon remand, it
should combine File No. xxxxxx781 with the instant case, File No. xxxxxx366. After combining
the two records, OWCP should consider all relevant evidence regarding whether appellant was
disabled for work on and after July 27, 2009 due to accepted bilateral foot conditions as claimed.
It should then issue an appropriate merit decision.
IT IS HEREBY ORDERED THAT the May 25, 2012 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: December 21, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

1

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter
2.400.8(c) (February 2000).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
SOCIAL SECURITY ADMINISTRATION, JFK
FEDERAL BUILDING, Boston, MA, Employer
__________________________________________

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

Docket No. 15-0891
Issued: August 9, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 3, 2015 appellant filed a timely appeal from a January 14, 2015 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $3,072.00 for the period May 6 to July 28, 2012
because she returned to work full time, but continued to receive partial disability compensation;
and (2) whether it properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated May 22, 2014, the
Board remanded a December 21, 2012 OWCP decision which denied waiver of an overpayment
1

5 U.S.C. § 8101 et seq.

of compensation.2 The facts and circumstances outlined in the prior Board decision are
incorporated herein by reference. The facts relevant to the present appeal are set forth below.
On September 29, 1997 appellant, then a 30-year-old computer assistant, filed a traumatic
injury claim (Form CA-1) alleging that on September 26, 1997 she sustained lower back pain
when she moved computer equipment and tables to different locations in the office.
On December 15, 1997 appellant was placed on the periodic rolls.
On September 28, 1998 appellant began to work part-time light duty working five hours
per day. On May 6, 2012 appellant returned to work full time with no restrictions.
OWCP continued to disburse periodic roll compensation payments in the net amount of
$1,024.00 each for the periods of May 6 to June 2, June 3 to 30, and July 1 to 28, 2012. It
calculated the total amount of wage-loss compensation for the period May 6 to July 28, 2012 for
a total overpayment of $3,072.00.
On August 17, 2012 OWCP reduced appellant’s wage-loss compensation to zero finding
that her actual earnings as a legal assistant fairly and reasonably represented her wage-earning
capacity.
On September 5, 2012 OWCP issued a preliminary overpayment determination that
appellant received an overpayment in compensation in the amount of $3,072.00 for the period
May 6 to July 28, 2012 because she returned to work full time, but continued to receive disability
compensation. It found that she was without fault in the creation of the overpayment and
requested that she provide financial information in order to determine waiver of recovery of the
overpayment. Appellant was advised that, if she failed to complete the Form OWCP-20 and
submit financial documents in support of waiver, within 30 days, pursuant to 20 C.F.R. § 10.438
waiver would be denied.
On October 1, 2012 OWCP received a signed overpayment action request form from
appellant dated September 24, 2012. Appellant requested a telephone conference on the issues
of fault and possible waiver of the overpayment. OWCP also received a completed overpayment
recovery questionnaire (Form OWCP-20) from appellant dated September 25, 2015. Appellant
explained that she was trying to climb out of debt and noted that she attached a credit report to
show how much she owed that she was not able to pay. She stated that being on disability
compensation did not give her any opportunity to get ahead financially. Appellant was
contesting the overpayment because she notified OWCP and the employing establishment more
than a month in advance that she was returning to work and she contended that she had no
control over stopping her disability compensation payments in the system.
Appellant provided a credit record which demonstrated that she owed $1,019.00 to
Cavalry Portfolio Services for a past due amount, $25,000.00 for U.S. Department of Education
installment loan, and $999.00 to a collection bureau for a past due amount, $3,495.00 to Chase
bank, and $4,865.00 to a utilities company. She submitted bank statements which demonstrated
that she had $3.13 in a checking account, a negative balance in a credit union account, and
$404.07 in a savings account.
2

Docket No. 13-1145 (issued May 22, 2014).

2

Appellant reported that she received total monthly income of $2,818.26 from earnings
and that she had three dependents. She indicated that she had monthly expenses of $1,100.00 for
rent or mortgage, $600.00 for food, $500.00 for clothing, $200.00 for utilities, $50.00 for gas,
$200.00 for cable, $153.00 and $164.00 for telephones, $240.00 for gasoline, $250.00 for other
miscellaneous household expenses, $133.00 for automobile insurance, $120.00 for personal
necessities, and $55.00 for monthly medication. Appellant further reported that she owed
$3,495.00 for a car loan with monthly payments of $373.66 and $4,865.00 back bill for utilities
with monthly payments of $300.00 for total monthly expenses of $4,438.66. She noted that she
had $404.07 in her savings account.
By letter dated November 15, 2012, OWCP stated that it received appellant’s completed
overpayment recovery questionnaire and request for a telephone conference. It advised appellant
to submit proof of her monthly bills and payments from the employing establishment for one
month in order to schedule a telephone conference. OWCP reported that if no copies of the bills
were received within 15 days, it would issue a final decision on the overpayment of $3,072.00.
On December 4, 2012 OWCP received additional financial information from appellant,
including employing establishment earnings and leave statements for November 2012, a copy of
her lease agreement which indicated that rent was $1,100.00 a month, and a November 23, 2012
letter from CVS Pharmacy where it reflected that she had three medications she paid $60.00 for
monthly.
By decision dated December 5, 2012, OWCP issued a final decision, finding that
appellant had not submitted sufficient financial information to support a request for waiver.
On December 21, 2012, OWCP voided its December 5, 2012 decision and issued a new
decision finalizing its preliminary determination that appellant received an overpayment in the
amount of $3,072.00. It denied waiver of recovery of the overpayment finding that the financial
information received did not grant a basis for waiver of recovery of the overpayment. OWCP
determined that it would deduct $150.00 every 28 days from her continuing compensation
benefits.
By order remanding case dated May 22, 2014, the Board set aside the December 21, 2012
OWCP decision finding that OWCP did not review and consider the financial information
appellant submitted on October 1, 2012.3 It remanded the case for OWCP to consider all of the
financial information and to issue an appropriate decision on the issue of overpayment.
Following the Board’s order, appellant submitted a May 28, 2014 statement. She alleged
that she was never given the opportunity to defend herself on any of the allegations against her
by OWCP or the employing establishment. Appellant believed that the actions taken against her
were retaliation for her prior Equal Employment Opportunity (EEO) activity, union activity, and
her involvement with prior OWCP claims.
In a June 2, 2014 statement, appellant contended that she was being set up to get kicked
off of workers’ compensation since she began to attend college classes. She stated that OWCP
did nothing to help her return to work full-time, but she rehabilitated herself back to full-time
3

Supra note 2.

3

employment. Appellant reported that the workers’ compensation situation had created a hostile
work environment for her. She alleged that there was an abuse of authority on the part of the
supervisors and OWCP personnel toward her.
On January 14, 2015 OWCP issued a de novo decision which finalized the overpayment
in the amount of $3,072.00 for the period May 6 to July 28, 2012.4 It found that appellant was
without fault, but denied waiver of recovery of the overpayment finding that the financial
information received did not support her alleged expenditures.
LEGAL PRECEDENT
Section 10.431 of OWCP’s implementing regulations provides that, before seeking to
recover an overpayment or adjust benefits, OWCP will advise the individual in writing that the
overpayment exists and the amount of the overpayment.5 The written notification must also
include a preliminary finding regarding whether the individual was at fault in the creation of the
overpayment.6 Additionally, OWCP is obliged to advise the individual of his or her right to
inspect and copy the government records relating to the overpayment.7 Lastly, the preliminary
notice must inform the individual of his or her right to challenge the fact or amount of the
overpayment, the right to contest the preliminary finding of fault in the creation of the
overpayment, if applicable, and the right to request waiver of recovery of the overpayment.8 The
recipient of the alleged overpayment may present evidence in response to OWCP’s preliminary
notice either in writing or at a prerecoupment hearing.9 The evidence must be presented or the
hearing requested within 30 days of the date of the written notice of overpayment.10 Failure to
request the hearing within this 30-day time period shall constitute a waiver of that right.11
OWCP procedures provide that, once an overpayment is identified and calculated, it is
responsible for determining whether the claimant was with fault or without fault, issuing a
preliminary finding, and unless a hearing is requested, it is responsible for issuing a final
decision.12 It indicates that any new determination which results in an overpayment warrants a
separate formal decision and preliminary overpayment finding.13 OWCP procedures further note
4

The decision noted that appellant began making payments in the amount of $75.00 on October 4, 2013 and that
the debt balance was currently $2,397.00.
5

20 C.F.R. § 10.431(a).

6

Id. at § 10.431(b).

7

Id. at § 10.431(c).

8

Id. at §10.431(d).

9

Id. at § 10.432.

10

Id.

11

Id.

12

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4
(June 2009).
13

Id.

4

that, if the claimant is determined to be without fault, Form CA-2202 (preliminary finding
notice) must be released within 20 days of the date the overpayment is identified. It must clearly
state the reason that the overpayment occurred and provide the preliminary finding that the
claimant is without fault. Form CA-2202 informs the claimant of the right to submit evidence
and the right to a prerecoupment hearing on the issues of fact and amount of overpayment and
waiver.14
ANALYSIS
The Board finds the case not in posture for a decision.
In its May 22, 2014 order remanding case, the Board set aside OWCP’s December 21,
2012 overpayment decision as OWCP had not considered the financial information appellant had
submitted on October 1, 2012 in support of her request for waiver. The Board noted that
appellant had requested a telephone conference on the issues of fault and possible waiver of the
overpayment, but no telephone conference was held. The Board remanded the case for OWCP
to consider the financial information submitted and issue an appropriate decision, after such
further development of the evidence as necessary.
On January 14, 2015, OWCP issued a de novo decision, again denying waiver of
recovery of the $3,072.00 overpayment, stating that there was no financial information submitted
in response to OWCP’s November 12, 2012 request for financial records and that there was no
evidence that appellant made payments to her alleged payees. The Board finds, however, that
OWCP failed to follow its procedures in issuing its January 14, 2015 decision.15
Following its development of the issue of possible waiver, OWCP failed to issue a new
preliminary determination providing appellant with the right to challenge the fact or amount of
overpayment or allowing her to submit new information regarding waiver of recovery of the
overpayment. The Board has previously held that if a case has been remanded to OWCP for
additional development regarding waiver of overpayment, OWCP should issue a new
preliminary overpayment determination providing appellant with new appeal rights, including
the right to a prerecoupment hearing, and the opportunity to submit current financial information
which OWCP will evaluate to properly determine whether the overpayment should be waived.16
The Board has explained that OWCP’s failure to issue a preliminary determination following the
Board’s remand of an overpayment case infringes appellant’s procedural rights under OWCP
regulations.17
Accordingly, the Board finds that the case must be remanded for OWCP to issue a
preliminary determination regarding the overpayment, in accordance with its procedures, prior to
14

Id. at Chapter 2.600.4(a)(2) (June 2009).

15

20 C.F.R. § 10.431, 103432; see also K.H., Docket No. 11-603 (issued September 27, 2011); K.G., Docket No.
08-2135 (issued April 16, 2009).
16

J.R., Docket No. 12-986 (issued November 13, 2012).

17

B.T., Docket No. 14-1909 (issued May 19, 2015). The Board found that OWCP’s failure to issue a preliminary
determination following the Board’s remand of an overpayment case infringed appellant’s procedural rights under
its regulations at 20 C.F.R. §§ 10.431-432.

5

making any final overpayment determination. Following such further development as OWCP
deems necessary, it shall issue an appropriate decision on whether overpayment should be
waived.18
CONCLUSION
The Board finds the case not in posture. The case must be remanded to OWCP to issue a
preliminary determination regarding the overpayment, in accordance with its procedures.
ORDER
IT IS HEREBY ORDERED THAT the January 14, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.19
Issued: August 9, 2016
Washington, DC

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

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

18

In light of the disposition reached in issue 1, issue 2 is moot.

19

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

6