United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Athens, GA, Employer
__________________________________________

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Appearances:
Appellant, pro se
No Appearance, for the Director

Docket No. 08-2066
Issued: February 19, 2009

Oral Argument January 13, 2009

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

JURISDICTION
On July 21, 2008 appellant filed a timely appeal from the January 23, 2008 merit decision
of the Office of Workers’ Compensation Programs, denying her claim for fact of injury and the
July 10, 2008 nonmerit decision, finding that she had abandoned her oral hearing. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant established that she sustained a left elbow injury in
the performance of duty; and (2) whether appellant abandoned her request for an oral hearing
before an Office hearing representative. On appeal, appellant contends that she did not receive
notice of the scheduled oral hearing and that the evidence of record is sufficient to establish that
she sustained an employment-related left elbow injury.
FACTUAL HISTORY
On September 6, 2007 appellant, then a 48-year-old carrier technician, filed an
occupational disease claim (Form CA-2) alleging that she sustained a left elbow injury in

May 2006 while performing repetitive physical therapy exercises for a work-related left shoulder
injury. She returned to a light-duty position as a modified mail carrier on November 17, 2006.1
Appellant claimed that her left elbow injury was exacerbated by the repetitive tasks required by
her employment, including reaching with her left arm to retrieve mail from trays and holding
mail in her left arm while placing mail into cluster boxes with her right arm. She stopped
working on November 25, 2006 and did not return. On September 27, 2007 appellant retired on
disability.
By letter dated October 3, 2007, the Office requested that appellant provide additional
information and medical evidence supporting her claim.
In an October 21, 2007 statement, appellant stated that she was diagnosed with severe
epicondylitis caused by repetitive physical therapy activities and was prescribed
anti-inflammatories. A physical therapy report dated June 12, 2006 noted appellant’s complaint
of left elbow pain.
On June 14, 2006 Dr. Mark C. Cullen, a Board-certified orthopedic surgeon, performed a
follow-up examination of appellant’s postoperative left and right shoulder injuries and left elbow
complaints. He noted appellant’s significant left medial and lateral elbow pain. Physical
examination of the left elbow revealed mild lateral epicondyle and flexor pronator tenderness
and mild pain with wrist extension and grip testing.
In an April 11, 2007 medical report, Dr. Fareha Rahim, a Board-certified internist, stated
that she had treated appellant since October 2002. She reported that on May 12, 2006 appellant
presented with complaints of epicondylitis in her left elbow, caused by the repetitive activities
performed during postoperative therapy of her work-related left shoulder injury. The injury
continued to worsen after appellant’s return to work on October 21, 2006 due to the repetitive
activities of reaching, pushing and pulling required by her letter carrier position.
By decision dated January 23, 2008, the Office denied appellant’s claim, finding that she
did not submit sufficient evidence establishing that her injury occurred in the performance of
duty. The Office found that Dr. Rahim’s April 11, 2007 medical report referenced appellant’s
right elbow and thus did not support the claim for her left elbow injury. Further, it noted that the
record did not contain a medical report from the referenced May 12, 2006 examination.
On February 21, 2008 appellant filed a request for an oral hearing before a hearing
representative.
In a March 11, 2008 letter, the Office confirmed receipt of appellant’s request for an oral
hearing. In a letter dated May 15, 2008, it notified appellant that her hearing had been scheduled
for June 18, 2008. However, appellant did not appear.

1

The record reveals that appellant had been on light duty since 2003. She has several other workers’
compensation claims, including a claim for a left shoulder injury (under OWCP file number xxxxxx229) and
epicondylitis of the right elbow (under OWCP file number xxxxxx789).

2

By decision dated July 10, 2008, the Office found that appellant abandoned her hearing.
It found that appellant was given 30 days notice of the scheduled hearing, she did not appear at
the scheduled hearing and there was no evidence that she attempted to contact the Office either
prior or subsequent to the scheduled hearing to explain her absence.
LEGAL PRECEDENT -- ISSUE 1
An employee who claims benefits under the Federal Employees’ Compensation Act2 has
the burden of establishing the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.3
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable 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
diagnosed condition and the specific employment factors identified by the employee.5
ANALYSIS -- ISSUE 1
The issue is whether appellant established that she sustained a left elbow injury due to her
employment activities. The Board finds that appellant has not met her burden of proof.
In order to establish her claim, appellant must submit rationalized medical evidence
explaining the causal relationship between her employment and her current left elbow condition.6
She submitted a physical therapy report dated June 12, 2006, a June 14, 2006 medical report
from Dr. Cullen and an April 11, 2007 report from Dr. Rahim.7 The June 12, 2006 physical
2

5 U.S.C. §§ 8101-8193.

3

D.B., 58 ECAB ___ (Docket No. 07-440, issued April 23, 2007); George W. Glavis, 5 ECAB 363, 365 (1953).

4

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
6

See supra note 4.

7

At oral argument before the Board, appellant relied on a May 12, 2006 medical report from Dr. Rahim. As
noted in the Office’s January 23, 2008 decision, this report does not exist in the record.

3

therapy note does not constitute probative medical evidence as a physical therapist is not a
physician as defined under the Act.8 Dr. Cullen’s June 14, 2006 medical report only stated that
appellant experienced left elbow pain. He did not address the cause of her left elbow pain.
Therefore, his report is of diminished probative value.9
The only medical evidence of record addressing the cause of appellant’s left elbow
condition is the April 11, 2007 medical report from Dr. Rahim. The Board notes that, in the
January 23, 2008 decision, the Office incorrectly found that Dr. Rahim’s report discussed an
injury to appellant’s right elbow and was not relevant to her left elbow claim. Dr. Rahim’s
report states that appellant presented with a left elbow injury caused by repetitive physical
therapy activities, which was aggravated by the repetitive letter carrier duties once she returned
to work. However, the Board finds that Dr. Rahim’s report appears to merely repeat appellant’s
history regarding the cause of her left elbow condition instead of providing a medical
explanation on causation. Dr. Rahim did not fully address how appellant’s repetitive work and
physical therapy activities caused left elbow injury. Therefore, her report is of diminished
probative value.10
The Board finds that the medical evidence submitted by appellant is inadequate to
establish that she sustained a left elbow injury causally related to her employment activities.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of the Act provides that a claimant not satisfied with a decision on her
claim is entitled, upon timely request, to a hearing before a representative of the Office.11
The authority governing abandonment of hearings rests with the Office’s procedure
manual. Chapter 2.1601.6(e) of the procedure manual, dated January 1999, provides as follows:
“e. Abandonment of Hearing Requests.
(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to
appear at a scheduled hearing; and the claimant has failed to provide any
notification for such failure within 10 days of the scheduled date of the
hearing.

8

See 5 U.S.C. § 8101(2). See also David P. Sawchuck, 57 ECAB 316 (2006).

9

Robert Broome, 55 ECAB 339 (2004); Linda I. Sprague, 48 ECAB 386 (1997).

10

Victor J. Woodhams, see supra note 5.

11

5 U.S.C. § 1824(b).

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Under these circumstances, H&R [Branch of Hearings and Review] will
issue a formal decision finding that the claimant has abandoned his or her
request for a hearing and return the case to the DO [District Office].”12
The Office has the burden of proving that it mailed to claimant notice of the scheduled
hearing. It is presumed, in the absence of evidence to the contrary, that a notice properly mailed
to an individual in the ordinary course of business was received by that individual. The
presumption arises after it appears from the record that the notice was duly mailed and the notice
was properly addressed.13
ANALYSIS -- ISSUE 2
On February 21, 2008 appellant filed her request for an oral hearing before an Office
hearing representative. By letter dated May 15, 2008, the Office notified appellant that an oral
hearing was scheduled for June 18, 2008. On appeal, appellant contends that she never received
notice of her oral hearing. However, the record reflects that a copy of the May 15, 2008 hearing
notice was mailed to appellant’s address of record and was not returned as undeliverable.
The Board has found that, in the absence of evidence to the contrary, a letter properly
addressed and mailed in the due course of business, such as in the course of the Office’s daily
activities, is presumed to have arrived at the mailing address in due course.14 This is known as
the mailbox rule.15 As the record reflects that the Office mailed a hearing notice to appellant’s
address of record, it is presumed that it arrived at her mailing address. The record shows that
appellant did not request a postponement of the hearing and failed to provide an explanation for
her failure to attend within 10 days of the scheduled date of the hearing. As the circumstances of
this case meet the criteria for abandonment, the Board finds that appellant abandoned her request
for a hearing.
CONCLUSION
The Board finds that appellant did not establish that she sustained a left elbow injury in
the performance of duty. The Board also finds that the Office properly determined that appellant
abandoned her oral hearing.

12

Federal (FECA) Procedure Manual, Chapter 2 -- Claims, Abandonment of Hearing Request, Chapter
2.1601.6(e) (September 25, 2007).
13

Samuel Smith, 41 ECAB 226 (1989).

14

See James A. Gray, 54 ECAB 277 (2002); Charles R. Hibbs, 43 ECAB 699 (1992).

15

W.P., 59 ECAB ___ (Docket No. 08-202, issued May 8, 2008).

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ORDER
IT IS HEREBY ORDERED THAT the July 10 and January 23, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.16
Issued: February 19, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

16

The Board notes that at oral argument appellant made reference to a January 24, 2008 report from an Office
medical adviser. As this evidence was not considered by the claims examiner in the last merit decision on
January 23, 2008, the Board has no jurisdiction to review it for the first time on appeal. 20 C.F.R. § 501.2(c). See
also A.W., 59 ECAB ___ (Docket No. 08-306, issued July 1, 2008).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF NAVY, NAVAL AIR
SYSTEMS COMMAND, San Diego, CA,
Employer
__________________________________________

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

Docket No. 11-2021
Issued: August 21, 2012

Case Submitted on the Record

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

JURISDICTION
On September 12, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) decisions dated April 14, 2011 concerning the termination of
his compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation for wage loss
and medical benefits effective April 12, 2011 on the grounds that he no longer had any residuals
or disability causally related to his accepted employment-related injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 27, 2009 appellant, then a 54-year-old supervisor, filed an occupational disease
claim alleging bilateral carpal tunnel syndrome as employment related. He first became aware
that the condition was employment related on April 14, 2009.2 On April 20, 2010 OWCP
accepted appellant’s claim for bilateral carpal tunnel syndrome and authorized surgery. On
July 21, 2010 a right carpal tunnel surgery was performed. A left carpal tunnel surgery was
performed on November 1, 2010. Appellant stopped work on July 21, 2010. On August 3, 2010
OWCP placed him on the periodic rolls.
On April 11, 2011 Dr. Lance L. Altenau, a treating Board-certified neurological surgeon,
reviewed a surveillance videotape of appellant performing work and released him to his date-ofinjury position. He stated that it appeared that appellant’s “use of both hands is consistent with a
fully recovered carpal tunnel treatment” bilaterally. Based on his review of the videotape,
Dr. Altenau found that appellant was capable of performing his duties as a supervisor which did
not require significant physical activity.
By decision dated April 14, 2011, OWCP terminated appellant’s wage-loss and medical
benefits effective April 12, 2011.3
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must

2

Appellant noted April 28, 2009 as the date he first became aware of the condition.

3

The Board notes that, following the April 14, 2010 decision, OWCP received additional evidence. However, the
Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See I.R., Docket No. 09-1229 (issued February 24, 2010); J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB
284 (1988).
7

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).

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establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
OWCP procedures provide that notice is required prior to termination in all cases where
benefits are being paid on the periodic rolls.9 Pretermination notice is not required when the
claimant dies, returns to work, is convicted of defrauding FECA program or forfeits
compensation by failing to report earnings.10 The Board has held that OWCP must follow its
procedures and provide notice an opportunity to respond prior to the termination of
compensation benefits.11
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel condition, paid wage-loss
compensation and authorized medical care. It placed him on the periodic rolls for temporary
total disability on August 3, 2010. By decision dated April 14, 2011, OWCP terminated
appellant’s wage-loss compensation and medical benefits on the grounds that the bilateral carpal
tunnel condition had resolved without residuals. There is no evidence of record that appellant
was removed from the periodic rolls. There is no evidence of record to establish that one of the
exceptions to the pretermination notice requirement was applicable in this case. OWCP should
have provided appellant with notice that it intended to terminate his compensation and an
opportunity to submit evidence supporting a continuing employment-related disability.
The record contains no evidence that OWCP followed its procedures and issued a
pretermination notice prior to the April 14, 2011 final decision. Due process and elementary
fairness require that a claimant under the circumstances presented have notice and an opportunity
to respond prior to termination of benefits.12 The Board finds that the April 14, 2011 termination
was improper and it will be reversed.
CONCLUSION
The Board finds that the April 14, 2011 decision terminating wage-loss compensation
and medical benefits was improper as OWCP failed to provide notice of the proposed
termination.

8

B.K., Docket No. 08-2002 (issued June 16, 2009); Kathryn E. Demarsh, supra note 7; James F. Weikel, 54
ECAB 660 (2003).
9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.6(a) (March 1997);
Winton A. Miller, 52 ECAB 405 (2001).
10

Id. at Chapter 2.1400.6(c) (March 1997).

11

Winton A. Miller, supra note 9.

12

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 14, 2011 is reversed.
Issued: August 21, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nyssa, OR, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-1401
Issued: March 17, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On July 21, 2020 appellant, through counsel, filed an appeal from a purported June 10,
2020 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 20-1401.
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.2
The case record as transmitted to the Board does not contain a final adverse decision of OWCP
issued within 180 days from the date of docketing of the July 21, 2020 appeal.3 The case record
contains correspondence dated June 10, 2020, in which OWCP acknowledged counsel’s change
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.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

3
20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”

of address and forwarded him a copy of the December 11, 2019 decision as requested. However,
as the June 10, 2020 letters are purely informational in nature, neither constitutes a final adverse
decision of OWCP from which appellant may properly appeal.4
As there is no final adverse decision issued within 180 days by OWCP over which the
Board may properly exercise jurisdiction, the Board concludes that the appeal docketed as No.
20-1401 must be dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 20-1401 is dismissed.
Issued: March 17, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4
Id. at §§ 501.2(c) and 501.3(a); see also S.U., Docket No. 20-0636 (issued December 3, 2020); L.S., Docket No.
06-1199 (issued December 29, 2006).

2


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-93
Issued: May 8, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 18, 2012 appellant, through her attorney, filed a timely appeal from the
July 5, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish subsequent
conditions causally related to the previously accepted injury.
FACTUAL HISTORY
On February 24, 2009 appellant, then a 48-year-old delivery bar code sorter (DBCS)
operator, filed an occupational disease claim alleging that on January 14, 2008 she had a slight
pull in her shoulder at work. She advised that her new job as a DBCS operator consisted of
1

5 U.S.C. § 8101 et seq.

constant lifting of trays of mail weighing 15 to 35 pounds, working on a sweeper/loader position
eight hours a day, five days a week and placing trays on top of a pie cart. Appellant indicated
that she was casing letters and constantly reaching over her shoulder with her right arm. She
noted that the pain was in both arms with the right greater than the left and she had acute aches
and pains in the right shoulder, elbow, arm, wrist and hand. Appellant indicated that she became
aware of her condition on or about January 14, 2008 and realized that it was caused or
aggravated by her work on May 21, 2008.
The employing establishment controverted the claim and noted that appellant had been
off work for over a year and indicated that she stopped work in April 2008.
Appellant provided a statement with her claim, describing her condition and her other
claim, which had been accepted for bilateral carpal tunnel syndrome.2 She explained that she
had filed several previous requests to expand her claim to include bilateral brachial plexus,
bilateral ulnar, radial and median nerve syndrome.
In a February 6, 2008 report, Dr. Richard Rosenstein, an osteopath Board-certified in
rehabilitation medicine, noted appellant’s history. He stated that appellant had an abnormal
electrodiagnostic evaluation. Dr. Rosenstein determined that appellant had mild median
neuropathy affecting both wrists consistent with mild bilateral carpal tunnel syndrome. He
indicated that appellant’s symptoms were inconsistent with her physical examination. Appellant
had mild bilateral carpal tunnel syndrome with no motor or axonal changes. She received
treatment from Dr. Scott Fried, an osteopath and orthopedic hand surgeon.
On August 4, 2008 OWCP referred appellant for a second opinion to Dr. Steven
Valentino, a Board certified orthopedic surgeon and osteopath, regarding her 2003 injury. In a
September 9, 2008 report, Dr. Valentino described appellant’s history and noted a positive
Tinel’s sign. He diagnosed bilateral carpal tunnel syndrome and opined that the injury had not
resolved. Dr. Valentino stated that appellant could work with restrictions. He stated that
appellant’s tendinitis, epicondylitis, de Quervain’s syndrome, as well as injuries to the brachial
plexus, ulnar and radial nerve, were not due to the work injury.
In a September 13, 2008 report, Dr. Fried noted appellant’s history and her ongoing
evidence of flexor tenosynovitis and carpal tunnel median neuropathy in both hands and wrists.
He determined that she had significant sympathetic reactivity with involvement of her median
nerve at the carpal tunnel. Appellant also had sympathetic fibers of the median nerve causing
vascular instability and swelling and a ligament injury at the left wrist as well as proximal injury
with evidence of a double crush or two-level nerve injuries. Dr. Fried opined that she was not
capable of her regular work and noted significant evidence of repetitive strain and cumulative
traumas to her hands and wrists since the work injury of June 1, 2003. He continued to treat
appellant.

2

Appellant’s accepted claim for bilateral carpal tunnel syndrome, with a June 1, 2003 date of injury, was
developed in claim number xxxxxx320. That claim has been doubled with the claim that she filed on February 24,
2009, number xxxxxx446.

2

In a November 17, 2008 report, Dr. John Fenlin, a Board-certified orthopedic surgeon,
and treating physician examined appellant and provided findings. X-rays of appellant’s
shoulders were normal. A magnetic resonance imaging (MRI) scan on the right demonstrated
evidence of rotator cuff tendinitis but no evidence of significant cuff tearing. Dr. Fenlin
diagnosed nonspecific shoulder pain. He opined that appellant’s symptoms were more
pronounced than one would expect from her objective findings and indicated that appellant was
deconditioned. Dr. Fenlin recommended exercise and physical therapy.
On January 27, 2009 OWCP referred appellant to Dr. William Kirkpatrick, a Boardcertified orthopedic hand surgeon, for an impartial medical evaluation to resolve the conflict in
opinion between Dr. Valentino and Dr. Fried to determine the extent of disability related to
appellant’s accepted 2003 injury. Dr. Kirkpatrick was also asked to provide an opinion with
regard to whether appellant’s current medical conditions were related to the accepted conditions.
In a February 11, 2009 report, Dr. Kirkpatrick noted appellant’s history of injury and
treatment. He determined that she continued to have symptoms and findings suggestive of
ongoing bilateral carpal tunnel syndrome which were directly related to her injury of
June 1, 2003. Dr. Kirkpatrick indicated that appellant could not perform her preinjury job
without restrictions. He explained that she had other pain complaints in both arms that were not
part of her accepted bilateral carpal tunnel syndrome. Dr. Kirkpatrick indicated that appellant
had not worked since May 2008 but continued to remain symptomatic without improvement or
resolution. He opined that this suggested a nonwork-related condition. Dr. Kirkpatrick advised
that he suspected “some element of symptom magnification in this patient. Appellant’s grip
strengths were not physiologic and were not consistent with a Bell Curve.”
By letter dated May 27, 2009, appellant was advised to submit detailed factual and
medical evidence to support her claim for a bilateral upper extremity condition.
In a July 16, 2009 report, Dr. Fried opined that appellant sustained injuries to the bilateral
radial tunnel, and brachial plexus thoracic outlet nerve secondary to the repetitive reaching,
grasping, pulling, pushing and other work-related activities. He indicated that the brachial
plexus involvement and right shoulder rotator cuff tendinitis were also work related. Dr. Fried
stated that diagnostic and examination findings were consistent with appellant’s clinical
complaints. He opined:
“[There was] a direct cause and effect relationship between the work injuries …
and the work exposures and [her] ongoing clinical complaints and injuries. The
objective evidence is clear that these are documented and substantial injuries....
Even without continuing to work since May of 2008, [appellant] still has ongoing
injury. Once the nerve scarring has occurred and it passes the inflammation
phase, there is permanent nerve injury and even daily activities exacerbate and
continue to worsen these involvements.”
By decision dated July 31, 2009, OWCP denied the claim. It found that the medical
evidence did not establish that the claimed conditions were related to appellant’s work duties.

3

On August 4, 2009 appellant’s representative requested a hearing, which was held on
November 17, 2009. At the hearing, appellant described her work history and DBCS operator
duties, which included dispatching, loading, pulling and lifting mail trays. She alleged that her
shoulder condition and other conditions were related to her work.
Also received were medical records, treatment notes and diagnostic test results. In a
June 2, 2009 electrodiagnostic report, Dr. Ernest M. Baran, a Board-certified internist,
determined that the peripheral median and ulnar sensory conduction parameters were normal and
symmetrical. OWCP also received copies of intermittent reports dating from June 2 to July 16,
2009 from Dr. Fried.
By decision dated February 4, 2010, the hearing representative affirmed the July 31, 2009
decision. She determined that there was no rationalized medical evidence to support that
appellant’s shoulder condition was causally related to factors of her federal employment.
In a letter dated January 31, 2011, appellant’s representative requested reconsideration
and submitted additional medical evidence. In a January 27, 2011 report, Dr. Fried noted
appellant’s history and advised that she began having bilateral upper extremity symptoms after
beginning to work on the DBCS machine. He explained that despite not working since
May 2008 she continued to have ongoing injury. Dr. Fried opined that appellant had evidence of
the rotator cuff tendinitis and evidence of the second level of nerve injury or double crush
syndrome, with her carpal tunnel involving the median nerve all the way up to the brachial
plexus and neck level. He advised that her objective findings and evidence were overwhelming.
Dr. Fried indicated that objective findings included nerve scarring and permanent nerve injury.
He opined:
“[In further support of appellant’s ongoing problems and the direct cause and
effect relationship to the same,] it is noted above that she came out of work and
when she ceased her work activities the symptoms calmed down. When appellant
returned to the same work activities which caused her problems, she had
recurrence of the symptoms and aggravation of the same. This essential ‘testing
in combat’ approach is another form of real life functional capacity testing and is
consistent again with the fact that there is a direct cause and effect relationship
between her work activities and the rotator cuff and brachial plexus involvement
at the shoulders as well as her median nerve carpal tunnel involvements.”
Dr. Fried continued to treat appellant and submit reports. OWCP also received a functional
capacity evaluation dated December 10, 2010.
By decision dated May 9, 2011, OWCP denied modification of the February 4, 2010
decision.
On July 27, 2011 appellant appealed to the Board. The Board in a June 12, 2012 order
found that the case was not in posture for a decision. The Board remanded the case to OWCP to

4

double File Nos. xxxxxx320 and xxxxxx446 as there was frequent cross referencing between
appellant’s upper extremity claims.3
In a July 5, 2012 decision, after doubling the claims, OWCP denied modification of its
prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged, and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.4 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.5
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.6 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician 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 factors identified by the claimant.8
Once an employee establishes an injury in the performance of duty, he or she has the
burden of proof to establish that any subsequent medical condition or disability for work, which
the employee claims compensation, is causally related to the accepted injury.9

3

Docket No. 11-1836 (issued June 12, 2012).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

See S.P., 59 ECAB 184, 188 (2007).

7

See R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

8

I.J., 59 ECAB 408 (2008); Woodhams, supra note 5.

9

See Leon Thomas, 52 ECAB 202 (2001).

5

ANALYSIS
Appellant attributed her shoulder condition, bilateral brachial plexus, bilateral ulnar,
radial and median nerve syndrome conditions to pushing all-purpose containers, working on
DBCS machines and casing mail. The employing establishment controverted the claim and
indicated that she had not worked since April 2008. OWCP accepted the incident and found that
there was insufficient medical evidence to support that these conditions were causally related to
work factors. The issue, therefore, is whether the medical evidence establishes a causal
relationship between the claimed conditions and the identified employment factors.
The Board notes that a conflict of medical opinion existed in the accepted bilateral carpal
tunnel syndrome claim regarding the nature and extent of any ongoing residuals of the work
injury of June 1, 2003. OWCP referred appellant to Dr. Kirkpatrick to resolve the conflict in
opinion between Dr. Valentino and Dr. Fried regarding the resolution of appellant’s accepted
2003 injury and work restrictions. Although it asked Dr. Kirkpatrick to also provide an opinion
regarding whether appellant’s other conditions were related to the accepted conditions, he was
not an impartial specialist under section 8123(a) with regard to these conditions.10
Dr. Kirkpatrick’s report, however, may be considered for its own intrinsic value with regard to
nonaccepted conditions.11 His February 11, 2009 report provided an extensive review of
appellant’s history, reported findings and determined that appellant had no other upper extremity
conditions that were attributable to her accepted condition. Dr. Kirkpatrick indicated that
appellant had not worked since May 2008 but continued to be symptomatic without
improvement. He opined that this suggested a nonwork-related condition. Dr. Kirkpatrick also
suspected “some element of symptom magnification” as her “grip strengths were not physiologic
and were not consistent with a Bell Curve.” Thus, his opinion does not support that any shoulder
or other upper extremity condition is employment related.
Appellant provided reports from Dr. Fried, who provided opinions that the bilateral
brachial plexus, bilateral ulnar, radial and median nerve syndrome were work related. Dr. Fried
attempted to explain the relationship of these conditions to her employment in his February 16,
2009 and January 27, 2011 reports. In his January 27, 2011 report, he attributed her conditions
to her employment despite not working since May 2008. In his February 16, 2009 report,
Dr. Fried opined that the objective evidence supported the “documented and substantial
injuries.... Even without continuing to work since May of 2008, [appellant] still has ongoing
injury. Once the nerve scarring has occurred and it passes the inflammation phase, there is
permanent nerve injury and even daily activities exacerbate and continue to worsen these
involvements.” The Board notes that Dr. Kirkpatrick did not indicate that he found any nerve
scarring. Furthermore, Dr. Fried did not explain why specific work activities caused such
scarring occurred. This is especially important in light of the fact that in the February 6, 2008
report, Dr. Rosenstein noted that appellant’s evaluation was abnormal and her symptoms were
inconsistent with her physical examination and electrodiagnostic findings.

10

See 5 U.S.C. § 8123(a).

11

See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

6

In a report dated July 16, 2009, Dr. Fried stated that appellant had injuries to the bilateral
radial tunnel, and brachial plexus thoracic outlet nerve secondary to the repetitive reaching,
grasping, pulling, pushing and other work-related activities. He indicated that the brachial
plexus and right shoulder rotator cuff tendinitis were also work related. Dr. Fried opined that
there was “a direct cause and effect relationship between the work injuries and the work
exposures and [appellant’s] ongoing clinical complaints and injuries. The objective evidence is
clear that these are documented and substantial injuries.... Even without continuing to work
since May of 2008, [appellant] still has ongoing injury. Once the nerve scarring has occurred
and it passes the inflammation phase, there is permanent nerve injury and even daily activities
exacerbate and continue to worsen these involvements.” However, Dr. Fried again did not
explain the reasons why specific work activities, that occurred no later than May 2008, caused or
aggravated any of the diagnosed conditions.
Other reports submitted by appellant did not offer any opinion regarding the cause of
appellant’s condition. Medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship.12
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is causal relationship between his claimed condition and his
employment.13 To establish causal relationship, he must submit a physician’s report in which the
physician reviews the employment factors identified as causing his condition and, taking these
factors into consideration as well as findings upon examination, state whether the employment
injury caused or aggravated the diagnosed conditions and present medical rationale in support of
his or her opinion.14 Appellant failed to submit such evidence in this case and, therefore, has
failed to discharge her burden of proof to establish that she sustained an employment-related
shoulder condition.
On appeal, appellant’s representative argued that OWCP refused to expand the prior
claim, which was accepted for carpal tunnel syndrome. He explained that a new claim for an
occupational disease was filed. Counsel argued that the report of the impartial medical examiner
should not be given special weight as he was not asked to address conditions other than the
carpal tunnel syndrome. As explained, Dr. Kirkpatrick is not an impartial specialist with regard
to the nonaccepted conditions and, while his opinion is not entitled to special weight on these
conditions, his opinion may still be considered. Appellant’s representative argued that
Dr. Fried’s report should carry the weight of the evidence. However, as noted above, Dr. Fried’s
reports are insufficient to establish that any additional conditions are work related.
Appellant may submit evidence or argument with a written request for reconsideration
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.

12

Conard Hightower, 54 ECAB 796 (2003).

13

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

14

Calvin E. King, 51 ECAB 394 (2000).

7

CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing her claim.
ORDER
IT IS HEREBY ORDERED THAT the July 5, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 8, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, Warner Robins, GA,
Employer
__________________________________________

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

Docket No. 16-1402
Issued: December 15, 2016

Case Submitted on the Record

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

JURISDICTION
On June 20, 2016 appellant filed a timely appeal of a June 14, 2016 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days elapsed since
the last merit decision dated March 15, 1991 to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly found that appellant’s request for reconsideration
was untimely filed and failed to demonstrate clear evidence of error.

1

Appellant initially filed a timely request for oral argument before the Board. On July 6, 2016 the Board
received appellant’s letter which withdrew his request for oral argument. The Board will therefore proceed with a
review of the record.
2

5 U.S.C. § 8101 et seq.

On appeal appellant argues that OWCP erred in finding that he failed to demonstrate
clear evidence of error.
FACTUAL HISTORY
Appellant’s claim has previously been before the Board on multiple appeals. The facts
and circumstances of the prior appeals are set forth in the Board’s prior decisions and are
incorporated herein by reference.3 The relevant facts are as follows.
On July 25, 1988 appellant, then a 38-year-old computer operator, filed a traumatic injury
claim (Form CA-1) alleging that on July 14, 1988 he injured his back when he tripped and fell
over a box. OWCP accepted the claim for a low back strain.
Appellant filed a recurrence of disability (Form CA-2a) alleging disability as of July 3,
1989 causally related to his July 14, 1988 employment injury. OWCP denied this claim on
January 16, 1990 finding that he failed to submit evidence sufficient to establish that his current
back condition was causally related to his July 14, 1988 employment injury. On November 19,
1990 appellant timely requested reconsideration. On March 15, 1991 OWCP reviewed the
merits of the claim and denied modification of the prior decision. It found that the medical
3

Docket No. 94-544 (issued July 19, 1995) (the Board affirmed a November 9, 1993 nonmerit OWCP decision
denying reconsideration of a March 15, 1991 OWCP decision); Docket No. 01-798 (issued October 9, 2001) (the
Board affirmed a November 27, 2000 decision denying appellant’s reconsideration request as it was untimely filed
and failed to demonstrate clear evidence of error); Docket No. 03-887 (issued June 5, 2003) (the Board affirmed a
February 11, 2003 OWCP decision denying appellant’s reconsideration request as untimely filed and failed to
demonstrate clear evidence of error); Docket No. 03-905 (issued January 21, 2004) (the Board issued an order
remanding the case for reconstruction of the record); Docket No. 04-64 (issued August 9, 2005) (the Board affirmed
OWCP’s October 7, 2003 decision denying appellant’s request for reconsideration as it was untimely filed and failed
to demonstrate clear evidence of error); Docket No. 06-875 (issued September 8, 2006 (the Board affirmed OWCP’s
January 23, 2006 nonmerit decision denying appellant’s request for reconsideration of the March 15, 1991 decision
as it was untimely filed and failed to demonstrate clear evidence of error); Docket No. 07-55 (issued March 27,
2007) (the Board affirmed OWCP’s September 29, 2006 nonmerit decision denying appellant’s request for
reconsideration of the March 15, 1991 decision as it was untimely filed and failed to demonstrate clear evidence of
error); Docket No. 07-1907 (issued January 15, 2008) (the Board issued an order dismissing appellant’s appeal as he
had not appealed from a final decision of OWCP); Docket No. 08-1121 (issued November 3, 2008) (the Board
affirmed OWCP’s February 28, 2008 nonmerit decision denying appellant’s request for reconsideration of the
March 15, 1991 decision as it was untimely filed and failed to demonstrate clear evidence of error); Docket No. 10334 (issued August 4, 2010) (the Board issued an order dismissing appellant’s appeal as he had failed to file a timely
appeal of OWCP’s May 15, 2009 nonmerit decision; Docket No 11-1626 (issued February 14, 2012) (the Board
affirmed OWCP’s July 5, 2011. On February 14, 2012 the Board affirmed a June 21, 2011 nonmerit decision
denying appellant’s request for reconsideration of the March 15, 1991 decision as it was untimely filed and failed to
demonstrate clear evidence of error), Erratum Docket No. 11-1626 (issued April 26, 2012), petition for recon.
denied, Docket No. 11-1626 (issued July 26, 2012). By decision dated September 10, 2013, the Board affirmed an
OWCP nonmerit decision dated February 1, 2013 denying his request for reconsideration as it was untimely filed
and failed to demonstrate clear evidence of error. Docket No. 13-734 (issued September 10, 2013), petition for
recon. denied, Docket No. 13-734 (issued May 2, 2014). On August 14, 2014 the Board issued an order dismissing
appellant’s December 26, 2013 petition for reconsideration due to the Board’s lack of jurisdiction as the request for
reconsideration was not filed within 30 days of the Board’s September 10, 2013 decision. By decision dated
December 3, 2015, the Board affirmed a June 22, 2015 decision denying appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
Docket No. 15-1609 (issued
December 3, 2015). On December 23, 2015 the Board issued an order dismissing appellant’s appeal as it was
duplicative of an earlier appeal. Docket No. 15-1883 (issued December 23, 2015).

2

evidence failed to demonstrate that the claimed condition or disability for work was causally
related to appellant’s accepted employment injury.
The March 15, 1991 decision is the last merit decision regarding appellant’s July 3, 1989
recurrence claim. The statement of appeal rights accompanying OWCP’s March 15, 1991 merit
decision notified appellant that any further request for reconsideration must be made within one
year of the date of the decision, i.e., within one year of March 15, 1991.
In letters dated April 1 and 13, 2016, appellant requested reconsideration and asked
OWCP to review all prior decisions and the current medical evidence. He argued that OWCP
failed to consider his mental status when finding that he failed to establish good reason for filing
an untimely request for reconsideration. In his April 13, 2016 letter, appellant argued that the
medical evidence established that he was entitled to receive compensation benefits and was
totally disabled due to his accepted work injury. He further argued that OWCP failed to consider
his mental illness when finding that he had filed an untimely request for reconsideration.
In support of his request, appellant submitted a June 30, 2014 report from Dr. Harvey A.
Jones, an attending general surgeon and an undated claim for a recurrence of disability (Form
CA-2a) beginning July 14, 1988. He also resubmitted evidence previously considered by the
Board and OWCP including a July 10, 1989 report by Dr. Jones, a March 14, 2012 report by
Dr. Benjamin M. Johnston, a treating Board-certified internist, and an October 11, 1990 notice of
separation by the employing establishment.
Dr. Johnston, in his March 14, 2012 report, noted that appellant attributed his recurrent
lumbosacral pain to a 1988 employment injury. He opined that appellant’s current spinal
problems were the result of the July 14, 1988 employment injury.
In his June 30, 2014 report, Dr. Jones provided a history of appellant’s treatment and
opined that appellant had sustained a permanent injury due to the accepted 1988 work injury. He
also reported that appellant became depressed and became narcotic dependent following the
1989 surgery. According to Dr. Jones this resulted in appellant’s incoherence and failure to
make proper decisions such as applying for permanent and total disability.
By decision dated June 14, 2016, OWCP determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulation, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.4 OWCP will not review a decision denying or
terminating a benefit unless the application for review is received within one year of the date of

4

5 U.S.C. § 8101 et seq. The Board has found that the imposition of the one-year limitation does not constitute
an abuse of the discretionary authority granted OWCP under section 8128(a) of FECA. See J.S., Docket No. 10-385
(issued September 15, 2010); Andrew Fullman, 57 ECAB 574 (2006); Adell Allen (Melvin L. Allen), 55 ECAB
390 (2004).

3

that decision.5 When an application for review is untimely, OWCP undertakes a limited review
to determine whether the application demonstrates clear evidence that OWCP’s final merit
decision was in error.6 OWCP 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 application for review demonstrates “clear evidence of error” on the part of OWCP.7
In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record.8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.9 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.11 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.12 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.13 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.14
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that OWCP abused its discretion in denying
merit review in the face of such evidence.15
5

20 C.F.R. § 10.607; see also E.R., Docket No. 09-1655 (issued March 18, 2010); Debra McDavid, 57 ECAB
149 (2005); Alan G. Williams, 52 ECAB 180 (2000).
6

B.W., Docket No. 10-323 (issued September 2, 2010); M.E., 58 ECAB 309 (2007) Leon J. Modrowski, 55
ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).
7

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “OWCP will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of [it] in its
most recent merit decision. The application must establish, on its face, that such decision was erroneous.” 20
C.F.R. § 10.607(b).
8

See Nelson T. Thompson, 43 ECAB 919 (1992).

9

See Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

10

See Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

11

See Leon J. Modrowski, supra note 6; Jesus D. Sanchez, supra note 6.

12

See Leona N. Travis, supra note 10.

13

See supra note 8.

14

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

15

See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon.
denied, 41 ECAB 458 (1990).

4

ANALYSIS
Appellant seeks reconsideration of a March 15, 1991 merit decision denying modification
of his claim that he sustained a recurrence of disability on July 3, 1989 as a result of his accepted
July 14, 1988 employment injury. He continues to disagree with the denial of his claim and filed
his request for reconsideration in letters dated April 1 and 13, 2016. While appellant has
requested that the time limitation be waived due to his mental condition, he has not submitted
any rationalized medical evidence based on objective findings to substantiate that he was
mentally incompetent and incapable of filing a request for reconsideration during the year
following March 15, 1991.16 While Dr. Jones noted in his June 30, 2014 report that appellant
became depressed and narcotic dependent following his 1989 surgery, he did not specifically
address whether appellant was mentally incompetent during the relevant time period. Therefore
his report fails to prove mental incompetence as alleged.
Because appellant filed his request more than one year after OWCP’s March 15, 1991
merit decision, the Board finds that appellant filed an untimely request for reconsideration.
Thus, appellant must demonstrate clear evidence of error on the part of OWCP in denying his
claim.17
The Board further finds that appellant’s request for reconsideration fails to demonstrate
clear evidence of error. To demonstrate clear evidence of error, the evidence submitted must be
of sufficient probative value to prima facie shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.18 A detailed,
well-rationalized medical report which would have required further development if submitted
prior to issuance of the denial decision, does not constitute clear evidence of error.19 To
demonstrate clear evidence of error, it is insufficient merely to show that the evidence could be
construed so as to produce a contrary conclusion. The term clear evidence of error is intended to
represent a difficult standard.20
In support of his request, appellant submitted to OWCP a new report by Dr. Jones dated
June 30, 2014. Dr. Jones, in his June 30, 2014 report, opined that appellant sustained permanent
injury due to the accepted 1988 work injury. Dr. Jones did not specifically address the accepted
low back strain or how it caused a recurrence of total disability on July 3, 1989.
Appellant also resubmitted a July 10, 1989 report by Dr. Jones, a March 14, 2012 report
by Dr. Johnston, and an October 11, 1990 notice of separation by the employing establishment.
In resubmitting these documents, he did not explain how this evidence was positive, precise, and
explicit in manifesting on its face that OWCP committed an error in denying his claim for a
16

I.F., Docket No. 15-625 (issued June 2, 2015).

17

20 C.F.R. § 10.607(b). See S.D., 58 ECAB 713 (2007); Jack D. Johnson, 57 ECAB 593 (2006).

18

See Robert G. Burns, 57 ECAB 657 (2006); supra note 14.

19

See G.B., Docket No. 16-319 (issued April 16, 2016); Joseph R. Santos, 57 ECAB 554 (2006).

20

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (February 2016);
see Dean D. Beets, 43 ECAB 1153 (1992).

5

recurrence of disability. It is not apparent how resubmission of this evidence is sufficient to raise
a substantial question as to the correctness of OWCP’s decision.21
None of the evidence appellant has submitted manifests on its face that OWCP
committed an error in denying appellant’s recurrence claim. Appellant has not otherwise
submitted evidence of sufficient probative value to raise a substantial question as to the
correctness of OWCP’s merit decision. Thus, the evidence is insufficient to demonstrate clear
evidence of error.
Appellant again argued that he never healed from his original injury, that OWCP
mishandled his claim, and that the medical evidence was sufficient to establish his claim.
Appellant’s April 1 and 13, 2015 requests for reconsideration did not establish that OWCP’s
March 15, 1991 decision was erroneous in finding that a recurrence of disability had not been
established. The Board will, therefore, affirm the July 14, 2016 decision denying appellant’s
request.
On appeal appellant contends that the evidence submitted demonstrates clear evidence of
error. As discussed above and in prior Board decisions, appellant has failed to establish any
error on the part of OWCP in denying his recurrence claim and in finding that he failed to
demonstrate clear evidence of error.
CONCLUSION
OWCP properly refused to reopen appellant’s claim for reconsideration on the merits as
his request for reconsideration was untimely filed and failed to demonstrate clear evidence of
error.

21

J.J., Docket No. 13-1363 (issued November 6, 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 14, 2016 is affirmed.
Issued: December 15, 2016
Washington, DC

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

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

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

7


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

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

Docket No. 15-1167
Issued: November 10, 2015

Case Submitted on the Record

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

JURISDICTION
On April 28, 2015 appellant filed a timely appeal of a February 9, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from the last merit decision, dated August 30, 2012, and the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3 the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On February 14, 2008 appellant, then a 52-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his left hip and lower back when he slipped and fell
1

5 U.S.C. § 8101 et seq.

in the performance of duty on February 8, 2008. On August 15, 2008 appellant’s attending
physician, Dr. Ronnie D. Shade, a Board-certified orthopedic surgeon, diagnosed acute lumbar
strain on February 13, 2008. He included the additional conditions of lumbar radiculitis as well
as lumbar radiculopathy L5 and S1 on August 15, 2008, based on electrodiagnostic studies.
OWCP accepted appellant’s claim for sprain of the lumbar back, thoracic or lumbosacral
neuritis or radiculitis and aggravation of brachial neuritis, or radiculitis on September 19, 2008.
In a report dated March 4, 2010, Dr. Shade opined that appellant had reached maximum
medical improvement on that date. He reviewed magnetic resonance imaging (MRI) scans
which demonstrated a disc bulge and protrusion at L5-S1, electromyogram (EMG) and nerve
conduction velocity (NCV) studies which demonstrated lumbar radiculopathy at L5. Dr. Shade
diagnosed lumbar radiculitis and lumbar radiculopathy at L5. He applied the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment,2 (A.M.A.,
Guides) and found that appellant had seven percent impairment of his “lower extremity” due to a
herniated disc at L5-S1 based on Table 17-4.3 Dr. Shade reviewed the grade modifiers and
concluded that functional history had a grade modifier 1, physical examination had a grade
modifier 0 and “[c]linical [e]xamination” or clinical studies was grade modifier 4. This resulted
in an additional two percent impairment for an impairment rating of nine percent.
Appellant requested a schedule award on April 12, 2010.
An OWCP medical adviser reviewed Dr. Shade’s report on May 5, 2011 and stated that
Dr. Shade had not utilized the appropriate table in reaching his impairment rating. He noted that
Table 17-4 cited by Dr. Shade provided impairment ratings for the spine rather than for
scheduled body members.4 The medical adviser further noted that Dr. Shade found intact motor
and sensory function in the lower extremities which would not result in a finding of permanent
impairment of these members.
By decision dated May 6, 2011, OWCP denied appellant’s claim for a schedule award as
the medical evidence did not support a permanent impairment of a scheduled member in
accordance with the sixth edition of the A.M.A., Guides.

2

For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); see also Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
3

A.M.A., Guides 570, Table 17-4, Lumbar Spine Regional Grid: Spine Impairments.

4

No schedule award is payable for a member, function or organ of the body not specified in FECA or in the
regulations. Because neither FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back or spine, no claimant is entitled to such an award. As the schedule award
provisions of FECA include the extremities, a claimant may be entitled to a schedule award for permanent
impairment to a limb even though the cause of the impairment originated in the spine. W.D., Docket No. 10-274
(issued September 3, 2010); Ernest P. Govednick, 27 ECAB 77 (1975). OWCP will address lower extremity
impairments originating in the spine through Table 16-11. A.M.A., Guides 533, Table 16-11.

2

Appellant requested reconsideration on March 16, 2012 and submitted an additional
report dated September 15, 2011 from Dr. Shade addressing appellant’s impairment rating. He
stated that appellant had experienced lower back pain radiating into his left leg. Appellant
reported difficulty walking as well as going up and down stairs. Dr. Shade reviewed appellant’s
MRI scans and electrodiagnostic studies. He found that appellant had a normal gait, with
bilateral iliolumbar tenderness, and bilateral spinolumbar spasms. Dr. Shade found that
appellant’s patellar reflexes were diminished bilaterally and his Achilles reflex was absent
bilaterally. He reported a normal motor examination on the right with decreased strength in the
left lower extremity. Dr. Shade also found sensation deficits in the left lower extremity at L5-S1.
He applied the appropriate tables of the A.M.A., Guides and found that appellant had 12 percent
permanent impairment of his left upper extremity due to sensory and motor cervical impairments
at C5, C6, and C7. Dr. Shade further found that appellant had a total left lower extremity rating
of 24 percent permanent impairment based on sensory and motor impairments of L4, L5, and S1.
The medical adviser reviewed Dr. Shade’s September 15, 2011 report on
March 21, 2012. He noted that Dr. Shade had previously described normal sensation and normal
motor function in the lower extremities. The medical adviser requested an additional medical
examination to determine the findings on physical examination.
On June 12, 2012 OWCP referred appellant for a second opinion evaluation with Dr. Zvi
Kalisky, a Board-certified physiatrist. Appellant underwent NCV studies and an EMG on
August 1, 2012 which were normal with no evidence of diffuse or entrapment peripheral
neuropathy or radiculopathy in either the upper or lower extremities. Dr. Kalisky reported on
August 13, 2012 following an examination that deep tendon reflexes were symmetric and motor
examination was intact. He reported hypoesthesia in the anterior and lateral right thigh on
sensory examination. Dr. Kalisky reviewed appellant’s August 1, 2012 electrodiagnostic studies
and diagnosed status post cervical sprain/strain with nonverifiable radicular symptoms in the
upper extremities with no objective findings of radiculopathy. He also diagnosed status post
lumbar sprain/strain with chronic pain and nonverifiable radicular symptoms in the right thigh
with no objective findings of radiculopathy. Dr. Kalisky found that appellant had reached
maximum medical improvement and applied the A.M.A., Guides to his findings on physical
examination. He found that appellant had no ratable impairment in either the upper or lower
extremities due to the lack of objective physical or electrodiagnostic findings of radiculopathy.
By decision dated August 30, 2012, OWCP reviewed the merits of appellant’s claim and
denied modification of the May 6, 2011 decision denying a schedule award.
Appellant requested reconsideration on January 22, 2015. He submitted a note dated
January 11, 2015 and alleged that Dr. Kalisky had been fired or removed by OWCP as a referee
physician due to false medical examinations he had performed on behalf of the employing
establishment. Appellant submitted additional NCV and EMG results dated June 30, 2014 which
were interpreted as demonstrating bilateral median neuropathy at the wrist or carpal tunnel
syndrome moderate on the right and mild on the left as well as evidence of chronic right C5-6
radiculopathy. He also submitted a September 18, 2013 cervical MRI scan.
In an October 2, 2012 report, Dr. Shade again provided findings on examination and
noted his symptoms of pain in the lower back that radiated down into the left leg as well as pain,

3

numbness, tingling sensation, night pain, and cramps, in addition to pain in his arm. He
diagnosed brachial neuritis, lumbar sprain, and lumbar neuritis. Dr. Shade applied the tables of
the sixth edition of the A.M.A., Guides and concluded that appellant had 12 percent permanent
impairment of the left upper extremity and 24 percent permanent impairment of the left lower
extremity entitling him to schedule awards. He noted that the latter impairment demonstrated an
increase from the nine percent permanent impairment from his prior rating.
By decision dated February 9, 2015, OWCP declined to reopen appellant’s claim for
consideration of the merits on the grounds that the request for reconsideration was not timely
received within one year of the August 30, 2012 merit decision. It further found that the
evidence and argument submitted did not establish clear evidence of error.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.7
To the extent that a claimant asserts that a schedule award decision was erroneous based
on his or her medical condition at that time, this would properly be considered a request for
reconsideration.8 A claimant may, however, seek an increased schedule award if the evidence
establishes that he sustained increased impairment at a later date causally related to the accepted
employment injury. Even if the term reconsideration is used, when a claimant is not attempting
to show error in the prior schedule award decision and submits medical evidence regarding a
permanent impairment at a date subsequent to the prior schedule award decision, it should be
considered a claim for an increased schedule award.9 A proper claim for an increase in
permanent impairment is not subject to time limitations or to the clear evidence of error
standard.10

5

5 U.S.C. §§ 8101-8193, 8107.

6

20 C.F.R. § 10.404.

7

Supra note 2 at Chapter 2.808.5a (February 2013); see also Chapter 3.700, Exhibit 1 (January 2010).

8

See J.K., Docket No. 14-1082 (issued November 24, 2014).

9

B.K., 59 ECAB 228 (2007).

10

R.P., Docket No. 10-1123 (issued January 25, 2011).

4

ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant requested reconsideration on January 22, 2015 and submitted new evidence
regarding his claim for a schedule award, including additional electrodiagnostic studies dated
June 30, 2014 and an October 2, 2012 report from Dr. Shade. Dr. Shade provided findings on
examination and described appellant’s symptoms of pain in the lower back that radiated down
into the left leg as well as pain, numbness, tingling sensation, night pain, and cramps, in addition
to pain in his arm. He diagnosed brachial neuritis, lumbar sprain, and lumbar neuritis. Dr. Shade
then applied the tables of the sixth edition of the A.M.A., Guides and concluded that appellant
had 12 percent permanent impairment of the left upper extremity and 24 percent permanent
impairment of the left lower extremity entitling him to schedule awards. He noted that this was
an increased impairment from that which had previously been awarded.
In its February 9, 2015 decision, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to present clear evidence of error. Its procedures
state that, if a claimant is seeking an increased schedule award due to increased impairment
and/or additional exposure, but not contesting the decision or prior award, this should not be
treated as a reconsideration request and OWCP should develop the issue of entitlement to an
additional award.11
In the present case, appellant submitted a new medical report from Dr. Shade dated
October 2, 2012 after OWCP’s August 30, 2012 schedule award decision. This report addressed
the pertinent issue of this case, i.e., whether he was entitled to schedule award compensation for
extremity impairment, and it contained an impairment rating that referenced the A.M.A., Guides.
It is evident from the record that appellant was seeking a schedule award based on new medical
evidence. The Board has held that, even if the term reconsideration is used, when a claimant is
not attempting to show error in the prior schedule award decision and submits medical evidence
regarding a permanent impairment at a date subsequent to the prior schedule award decision, it
should be considered a claim for an increased schedule award and OWCP should issue a merit
decision on the schedule award claim, rather than adjudicate an application for reconsideration.12
The Board finds that OWCP improperly adjudicated appellant’s request for an additional
schedule award as a request for reconsideration under the clear evidence of error standard.13 The
case will be remanded for further development on the issue of whether appellant has a permanent
impairment of his right upper extremity entitling him to a schedule award. After this
development is carried out, OWCP shall issue a de novo decision on appellant’s claim.

11

See A.C., Docket No. 13-1810 (issued January 6, 2014); supra note 2 at Chapter 2.1602.3(b) (October 2011).

12

See B.K., 59 ECAB 228, 229-30 (2007); supra note 2 at Chapter 2.808.9.b (February 2013).

13

K.D., Docket No. 15-0524 (issued August 3, 2015).

5

CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the February 9, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with
this decision of the Board.
Issued: November 10, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.W., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Philadelphia, PA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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)
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)
)

Docket No. 11-1026
Issued: November 25, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
On March 21, 2011 appellant filed a timely appeal of a September 20, 2010 Office of
Workers’ Compensation Programs’ (OWCP) nonmerit decision. The Board docketed the appeal
as No. 11-1026. By its September 20, 2010 decision, OWCP found that appellant abandoned her
request for a hearing. Because more than 180 days has elapsed from the last merit decision dated
April 22, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits of her
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
Appellant, a 40-year-old correctional officer, was struck in the face by water discharged
from a fire extinguisher on March 1, 2010. She filed a claim for traumatic injury on March 3,
2010, alleging that she sustained an injury to her left eye causally related to the March 1, 2010
work incident. By decision dated April 22, 2010, OWCP denied the claim, finding that appellant
failed to submit medical evidence sufficient to establish her claim. On May 18, 2010 appellant
requested an oral hearing. On July 28, 2010 OWCP issued a notice of hearing and provided
procedural information regarding the hearing. The notice stated that a hearing would be held on
September 1, 2010 at 11:45 a.m. and was addressed to appellant at 550 Dupont Parkway, 46W,
1

For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal
of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

New Castle, DE 19720. Appellant did not appear at the hearing. By decision dated
September 20, 2010, OWCP determined that she had abandoned her request for a hearing.
The Board has duly considered the matter and finds that OWCP erred in finding that
appellant abandoned her request for a hearing. A review of the case file reveals that OWCP’s
July 28, 2010 notice of hearing was sent to 550 Dupont Parkway 46W, New Castle, DE 19720,
rather than to appellant’s address of record, 550 South Dupont Parkway, 46W, New Castle, DE
19720, and that appellant never received a copy of the notice. Accordingly, as the notice of
hearing was mailed to an incorrect address, the September 20, 2010 decision is set aside. The
case will be remanded to OWCP for rescheduling of the requested oral hearing.2
IT IS HEREBY ORDERED THAT the September 20, 2010 decision of the Office of
Workers’ Compensation Programs is set aside; the case record is remanded for further
proceedings consistent with this order of the Board.
Issued: November 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

Given the disposition of this matter, the Board will not schedule oral argument before the Board.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, TRENTON CARRIER
ANNEX, Trenton, NJ, Employer
__________________________________________

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

Docket No. 18-1348
Issued: January 4, 2019

Case Submitted on the Record

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

JURISDICTION
On June 11, 2018 appellant filed a timely appeal from a March 28, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish left lower extremity
conditions causally related to the accepted January 29, 2018 employment incident.
FACTUAL HISTORY
On February 9, 2018 appellant, a 52-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on January 29, 2018 he injured his left lower extremity in the
performance of duty. He indicated that he was walking down the street when his ankle and shin
1

5 U.S.C. § 8101 et seq.

started to hurt and swell. Appellant further indicated that the pain worsened during the course of
the day to the point where he could no longer walk. He described his condition as distal tibia
stress, left side shin and ankle. Appellant stopped work on February 5, 2018.2 OWCP did not
receive any additional evidence with the Form CA-1.
In a February 16, 2018 claim development letter, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the factual and medical
evidence necessary to establish his claim and also provided a questionnaire for completion. OWCP
afforded appellant 30 days to provide the necessary factual information and medical evidence.
OWCP subsequently received a January 29, 2018 handwritten statement from appellant.
Appellant noted that he was walking down South Broad Street when he started feeling pain in his
left ankle and shin area. He continued working until he reached a location on Hunter Avenue at
which point he stopped delivering mail because the pain was getting worse. Appellant further
indicated that he brought his mail back in order to seek medical treatment.
On February 7, 2018 Dr. Arthur R. Bartolozzi, a Board-certified orthopedic surgeon,
evaluated appellant for complaints of left shin pain beginning January 27, 2018. His narrative
report noted that there was no history of trauma to the area. A list of appellant’s active problems
included bilateral knee arthritis, leg pain, and bilateral knee primary osteoarthritis. Upon physical
examination of his left leg, Dr. Bartolozzi observed mild edema in the pretibial area and diffuse
tenderness over the subcutaneous area of the tibia. He indicated that x-ray examination showed
no evidence of fracture or periosteal reaction. Dr. Bartolozzi diagnosed leg pain. He also noted
that appellant’s examination was consistent with a tibial stress injury, but that there was no sign of
obvious stress fracture on x-ray. Dr. Bartolozzi advised that a magnetic resonance imaging (MRI)
scan would corroborate the diagnosis, but it was not required if appellant was able to diminish his
activities. In a separate note also dated February 7, 2018, he indicated that appellant had a stress
injury to the left distal tibia. Dr. Bartolozzi recommended minimal walking, four hours daily, for
10 days.
On February 9, 2018 the employing establishment issued appellant a properly completed
authorization for examination and/or treatment (Form CA-16), which indicated that he was
authorized to seek medical treatment at Aria Health for his claimed January 29, 2018 left lower
extremity injury -- distal tibia, left shin and ankle.
On February 27, 2018 Dr. Bartolozzi submitted Part B of Form CA-16, an attending
physician’s report, based on his February 7, 2018 examination. He described that appellant
experienced left shin pain and swelling after working January 27, 2018. Dr. Bartolozzi further
noted that appellant had an x-ray done on January 30, 2018 which revealed a bone spur in his
Achilles. He diagnosed left shin pain. Dr. Bartolozzi also noted a possible tibial stress injury that
would require a left leg MRI scan to confirm. He checked a box marked “yes” indicating that
appellant’s condition was caused or aggravated by the described employment activity.
2

The employing establishment indicated that appellant had prior leg injuries unrelated to work. On January 29,
2018 appellant reportedly stated that he had a possible blood clot that was not work related. However, when he filed
his claim on February 9, 2018 he reportedly advised the employing establishment that his union representative told
him to file Form CA-1.

2

Dr. Bartolozzi explained that appellant could have increased pain or swelling with prolonged
periods of walking, which could exacerbate symptoms. He also completed a duty status report
(Form CA-17) which described a history of injury of “walking [and left] ankle started to hurt.”
The reported diagnosis was possible tibial stress injury. Dr. Bartolozzi indicated that appellant
had been advised that he could resume work as of February 8, 2018. The only restriction was a
three-hour limit on walking intermittently.
By decision dated March 28, 2018, OWCP denied appellant’s claim. It accepted that the
January 29, 2018 incident occurred as alleged and that a medical condition had been diagnosed.
However, OWCP found that the evidence of record was insufficient to establish causal relationship
as it did not include a well-reasoned medical opinion explaining how the accepted January 29,
2018 work incident caused or aggravated the diagnosed medical conditions of left Achilles bone
spur, bilateral knee arthritis, and bilateral primary knee osteoarthritis.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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, including that an injury was sustained in the performance of duty as alleged, and that
any specific condition or disability claimed is causally related to the employment injury.4 These
are the essential elements of each and every compensation claim regardless of whether the claim
is predicated on a traumatic injury or an occupational disease.5
In order to determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established.6
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 and place, and in the manner alleged.7 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.8 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.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.10 The opinion of the physician must be
3

Supra note 1.

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Michael E. Smith, 50 ECAB 313 (1999).

6

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

7

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

8

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

9

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

10

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

3

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.11 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.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish left lower
extremity conditions causally related to the accepted January 29, 2018 employment incident.
Dr. Bartolozzi examined appellant on February 7, 2018. He noted a January 27, 2018 date
of injury, with no reported history of trauma. Dr. Bartolozzi indicated that appellant’s pain “began
insidiously after working on a Saturday.” However, on the Form CA-1 appellant reported having
been injured on Monday, January 29, 2018. A physician’s opinion on causal relationship must be
based on a complete factual and medical background.13
Dr. Bartolozzi’s various reports referenced leg pain, left shin pain, Achilles bone spur,
possible left distal tibial stress injury, bilateral knee arthritis, and bilateral knee primary
osteoarthritis.14 His February 7, 2018 treatment notes did not specifically address the cause of
appellant’s left lower extremity condition(s). The Board has held that medical evidence that does
not offer an opinion regarding the cause of an employee’s condition is of no probative value on
the issue of causal relationship.15 Therefore this report is insufficient to establish appellant’s claim.
In his February 27, 2018 attending physician’s report, Dr. Bartolozzi diagnosed left shin
pain, and noted “possible tibial stress injury.” Pain is a symptom, not a medical diagnosis.16
Moreover, Dr. Bartolozzi’s finding of a “possible” tibial stress injury is speculative and
equivocal.17 Regarding causal relationship, he noted that he believed appellant’s condition was
caused or aggravated by employment activity. Dr. Bartolozzi noted that appellant “could” have
increased pain or swelling with prolonged periods of walking, which could exacerbate symptoms.
His assessment regarding causal relationship is similarly equivocal. Dr. Bartolozzi did not
definitively state that prolonged walking either caused or contributed to appellant’s left lower
extremity condition(s), but merely that it “could” have. A physician’s opinion must be expressed
11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

12

James Mack, 43 ECAB 321 (1991).

13

Victor J. Woodhams, supra note 11.

14
Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012).
15

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

16

See supra note 14.

17

Ricky S. Storms, 52 ECAB 349, 352 (2001).

4

in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition(s) and appellant’s
specific employment factor(s).18 As Dr. Bartolozzi failed to provide a well-reasoned opinion on
causal relationship, his reports are insufficient to establish entitlement to FECA benefits.
In order to obtain benefits under FECA an employee 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.19 Because appellant has failed to provide such evidence demonstrating that his
diagnosed left lower extremity condition was causally related to the accepted January 29, 2018
employment incident, he has not met his burden of proof to establish his traumatic injury claim.20
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 that his
diagnosed left lower extremity condition was causally related to the accepted January 29, 2018
employment incident.

18

Victor J. Woodhams, supra note 11.

19

Supra note 4.

20

When the employing establishment properly executes a Form CA-16 which authorizes medical treatment as a
result of an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation,
which does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the
action taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from
the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB
608, 610 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the March 28, 2018 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 4, 2019
Washington, DC

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

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

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

6