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

)
)
)
)
)
)
)
)

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

Docket No. 11-1678
Issued: February 22, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 12, 2011 appellant filed a timely appeal of the January 24 and June 30, 2011
merit decisions of the Office of Workers’ Compensation Programs denying his claim for a left
hip condition. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed a
left hip condition due to factors of his federal employment.
On appeal, appellant noted that his physician stated that his employment duties
aggravated his underlying degenerative hip condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 18, 2010 appellant, then a 55-year-old postal inspector, filed an occupational
disease alleging that he required a total replacement of his left hip due to his employment duties.
On May 10, 2010 x-rays of his left hip revealed that his hip socket was not fully developed and
that he required a total hip replacement performed on July 29, 2010. Appellant stated that he
carried mail from 1975 through 1978 and from 1978 through 1991, clerked and was a window
clerk standing eight hours a day. In 1991 he became a postal inspector which entailed driving up
to eight hours a day and strenuous training consisting of shooting firearms, defensive tactics
including hand-to-hand combat and participation in arrest scenarios. Appellant stated that his
physician informed him that his 35 years of employment aggravated his hip condition.
On July 19, 2010 Dr. Peter Buck, a Board-certified orthopedic surgeon, stated that he was
treating appellant’s hip and would perform hip replacement surgery. He advised that, although
appellant’s severe arthritis was not caused by work-related activities, his employment activities
were a material aggravation of his condition.
In a letter dated September 14, 2010, OWCP requested that appellant provide additional
medical and factual information in support of his claim and allowed 30 days for a response.
By decision dated October 14, 2010, OWCP denied appellant’s claim on the grounds that
he failed to submit sufficient medical evidence to establish that his employment activities
aggravated his degenerative left hip condition.
Appellant requested reconsideration on October 21, 2010 and submitted additional
medical evidence. On May 27, 2010 Dr. Buck diagnosed severe degenerative arthritis in the left
hip due to mild congenital hip dysplasia. He examined appellant on July 14, 2010 and reviewed
x-rays noting severe destructive osteoarthritis involving the superior weight bearing portion of
the left hip with bone-on-bone arthritis. Dr. Buck stated, “I think [appellant] has an element of
dysplasia which predisposes his hip toward early degeneration.” He recommended a total hip
replacement. On July 29, 2010 Dr. Buck performed a total left hip arthroplasty due to severe
degenerative arthritis of the left hip. On August 11 and September 15, 2010 he advised that
appellant could return to work as of October 18, 2010 with restrictions.
By decision dated January 24, 2011, OWCP denied appellant’s claim finding that he had
not established the causal relationship between his hip condition and his federal employment
duties.
Appellant requested reconsideration on April 11, 2011 and submitted a March 26, 2011
report from Dr. Buck, who stated that appellant was not claiming that his work caused the
degenerative arthritis in his left hip. Dr. Buck reviewed appellant’s work activities and stated, “I
feel that [appellant’s] work activities have been a material aggravation in his left hip process and
degenerative arthritis. I confirm that there is a causal relationship with his work. [Appellant’s]
work hastened, accelerated and aggravated his hip condition requiring total hip replacement at a
young age.”

2

By decision dated June 30, 2011, OWCP denied appellant’s claim on the grounds that
Dr. Buck did not provide a well-reasoned medical opinion between appellant’s left hip condition
and his work duties. It found that Dr. Buck provided a conclusory statement supporting medical
reasoning, but did not provide any medical rationale in support of his opinion.
LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.3
Under FECA when employment factors cause an aggravation of an underlying condition,
the employee is entitled to compensation for the periods of disability related to the aggravation.
Where the aggravation is temporary and leaves no permanent residuals, compensation is not
payable for periods after the aggravation has ceased, even if the employee is medically
disqualified to continue employment because of the effect work factors may have on the
underlying condition.4
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.5 The nonadversarial policy of proceedings under
FECA is reflected in OWCP’s regulations at section 10.121.6
ANALYSIS
Appellant has alleged that the degenerative disease process in his left hip was aggravated
by his employment activities as a mail carrier and a postal inspector. He submitted medical
2

20 C.F.R. § 10.5(q).

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

4

Raymond W. Behrens, 50 ECAB 221 (1999).

5

Jimmy A. Hammons, 51 ECAB 219 (1999).

6

20 C.F.R. § 10.121.

3

evidence from Dr. Buck diagnosing severe degenerative arthritis in the left hip. Appellant also
described his employment duties.
The medical evidence in the record consists of a series of notes and reports from
Dr. Buck, who provided an opinion that appellant had degenerative arthritis due to mild
congenital hip dysplasia in May and July 2010 with an element of dysplasia, which predisposed
his left hip toward early degeneration. On July 19, 2010 Dr. Buck opined that, although
appellant’s severe arthritis was not caused by work-related activities, his employment activities
were a “material aggravation” of his condition. He further identified a plausible relationship
between appellant’s employment and his left hip condition on March 26, 2011 noting that he had
reviewed appellant’s work activities. Dr. Buck again opined that appellant’s work had
aggravated his left hip arthritis.
As noted above, proceedings under FECA are not adversarial in nature and OWCP is not
a disinterested arbiter. OWCP shares responsibility in the development of the evidence to see
that justice is done. Dr. Buck provided an opinion that appellant’s work duties aggravated his
left hip condition, although not to a reasonable degree of medical certainty. He based his review
on x-rays and the surgery he performed. Dr. Buck stated that he was aware of appellant’s
employment duties. His opinion that employment factors aggravated appellant’s degenerative
hip arthritis generally support appellant’s claim.
Causal relationship does not denote a single and exclusive causative factor. Where a
person has a preexisting condition which is not disabling but which becomes disabling because
of aggravation causally related to the employment, then regardless of the degree of such
aggravation, the resulting disability is compensable.7 While the medical evidence from Dr. Buck
is not fully rationalized so as to meet appellant’s burden of proof, it raises an undisputed
inference of causal relationship which is not contradicted by any other medical evidence of
record and is sufficient to require further development by OWCP.8 Accordingly, the Board will
remand the case for further development of the medical record to determine whether appellant
sustained an employment-related aggravation of his degenerative left hip arthritis necessitating
surgery.9 Following this and such other further development as OWCP deems necessary, it shall
issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision as it requires further
development of the medical evidence.

7

When employment factors cause an aggravation of an underlying condition, the employee is entitled to
compensation for the periods of disability related to the aggravation. See Chris Wells, 52 ECAB 445 (2001).
8

See, e.g., E.J., Docket No. 09-1481 (issued February 19, 2010).

9

B.S., Docket No. 11-48 (issued July 18, 2011).

4

ORDER
IT IS HEREBY ORDERED THAT June 30 and January 24, 2011 decisions of the
Office of Workers’ Compensation Programs are set aside and remanded for further development
consistent with this decision of the Board.
Issued: February 22, 2012
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, Jacksonville, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-610
Issued: October 21, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 13, 2011 appellant filed a timely appeal from a December 15, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the case.
ISSUE
The issue is whether appellant met his burden to establish that he sustained an
occupational disease in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 15, 2010 appellant, then a retired 57-year-old sheet metal mechanic, filed an
occupational disease claim alleging that he sustained noise-induced bilateral hearing loss.2 He
became aware of his condition and its relationship to his federal employment on June 10, 1990.
In a July 19, 2010 letter, OWCP informed appellant that additional evidence was needed
to establish his claim and gave him 30 days to submit a statement describing the occupational
exposure that led to his hearing impairment. In a separate July 19, 2010 letter, OWCP asked the
employing establishment to furnish any medical records pertaining to appellant’s condition,
including all audiograms.
A February 2, 2010 report signed by an audiologist related that appellant had a history of
noise exposure and complained of diminished hearing. An audiogram obtained February 1, 2010
exhibited the following decibel (dBA) losses for both ears at 500, 1,000, 2,000 and 3,000 Hertz
(Hz): 15, 25, 30 and 45. The audiologist diagnosed bilateral sensory hearing loss.
In a statement dated March 2, 2010, appellant detailed that he worked for the employing
establishment since 1976, initially as a laborer until 1984 and thereafter as a steel metal
mechanic until 2008. In both capacities, he was exposed to noise produced by aircraft engines,
metal cutters and shapers, chippers, grinders, riveters and various pneumatic tools for 45 hours
each week. Appellant also served in the military from 1973 to 1984 and was exposed to noise
generated by gunfire, percussion grenades, vehicles, pneumatic grinders, rivet guns and other
machinery. He wore hearing protection during these periods.3
A July 23, 2010 letter from the employing establishment agreed that appellant was
exposed to occupational noise, but did not specify the extent.4 In a subsequent undated report,
Dr. Karen M. Allstadt, an employing establishment physician specializing in occupational
medicine, noted that appellant demonstrated mild high-frequency hearing loss in the left ear in
1991 and mild-to-moderate bilateral loss in October 2000, the latter of which was indicative of
either middle ear involvement or a temporal bone injury. There was limited audiometric data
available between 1976 and 200 but she noted viewing audiograms beginning in October 2000 as
well as a referenced baseline from 1991, although she had no 1991 baseline sheet to review. By
2008, appellant showed mild-to-moderate bilateral high-frequency impairment.5 Dr. Allstadt
diagnosed sensorineural hearing loss and concluded that the intensity and duration of appellant’s
exposure was sufficient to cause his condition. She checked a box “no” on the report indicating
2

Appellant retired effective June 28, 2008.

3

This information was later incorporated into the September 24, 2010 statement of accepted facts.

4

The employing establishment noted that dosimetric data suggested that a similarly-situated individual would be
exposed to noise between 79 and 85 dBA based on an eight-hour time-weighted average (TWA). This data is not
part of the evidence of record.
5

Dr. Allstadt’s report included an unsigned hearing history form, which ostensibly summarized appellant’s
audiometric data from October 2, 2000 to February 2, 2010. However, the evidence of record does not contain any
corresponding audiograms.

2

that appellant’s hearing loss was not due to workplace noise exposure. Dr. Allstadt reviewed
appellant’s workplace records but did not perform a clinical evaluation.
The employing establishment controverted the claim in a July 26, 2010 letter, pointing
out that appellant did not furnish rationalized medical opinion evidence demonstrating a causal
relationship between his federal employment and the alleged injury. It did not provide any
audiograms or additional data regarding appellant’s workplace noise exposure during the term of
employment.
OWCP referred appellant for a second opinion examination to Dr. John S. Keebler, a
Board-certified otolaryngologist. In an October 12, 2010 report, Dr. Keebler did not observe any
physical abnormalities on examination and noted that the record did not contain audiograms
from the employing establishment. He could not compare appellant’s current test results to those
at the beginning of his noise exposure. An October 12, 2010 audiogram exhibited the following
dBA losses at 500, 1,000, 2,000 and 3,000 Hz: 25, 30, 30 and 50 for the right ear and 0, 15, 25
and 40 for the left ear. Dr. Keebler diagnosed mild-to-moderate bilateral sensorineural hearing
impairment. As the losses were seen at higher frequencies, he opined that appellant’s condition
was “probably just presbycusis” and advised that appellant wore earplugs at work.
OWCP asked Dr. Keebler in a November 9, 2010 letter to clarify his opinion. In a
November 18, 2010 supplemental report, Dr. Keebler specified that appellant sustained moderate
hearing impairment at 4,000, 6,000 and 8,000 Hz, which was consistent with the his age. He
stated that hearing loss was not greater at 4,000 Hz than 6,000 and 8,000 Hz which would be
expected with noise-induced loss.
In a December 8, 2010 report, an OWCP medical adviser reviewed the October 12 and
November 18, 2010 reports and disagreed with Dr. Keebler’s opinion. While the record did not
contain monitoring audiograms from the employing establishment, appellant was nonetheless
exposed to significant acoustic trauma during the course of his federal employment. Moreover,
the October 12, 2010 audiogram revealed a hearing impairment that materially exceeded what
would normally be predicated on presbycusis. OWCP’s medical adviser concluded that
appellant sustained noise-induced hearing loss.6
By decision dated December 15, 2010, OWCP denied appellant’s claim, finding that
Dr. Keebler’s reports constituted the weight of the medical evidence.
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

6

OWCP’s medical adviser listed October 12, 2010 at the date of maximum medical improvement, recommended
hearing aids and calculated 13 percent right monaural hearing impairment.

3

the employment injury.7 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.8
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.9 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.10
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, 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.11
ANALYSIS
The Board finds that the case is not in posture for decision.
After appellant filed an occupational disease claim for bilateral hearing impairment,
OWCP requested additional information from the employing establishment in a July 19, 2010
letter, specifically audiograms and other pertinent medical records. While the employing
establishment responded with July 23 and 26, 2010 letters and an undated report from
Dr. Allstadt, it failed to provide any audiograms. In her report, Dr. Allstadt noted viewing
audiograms beginning in October 2000 as well as a referenced baseline from 1991. This
audiometric evidence was not forwarded to OWCP. As a result, both the second opinion
examiner, Dr. Keebler, and OWCP’s medical adviser based their conclusions on a limited
medical file. An employer’s reluctance or refusal to submit requested evidence relating to an
employee’s hearing loss claim should not be an impediment to a successful prosecution of the
claim.12 In the present case, the type of information being sought, namely employing
establishment audiograms, is normally within the custody of said establishment and not readily
7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

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

9

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

10

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

11

I.J., 59 ECAB 408 (2008); Woodhams, supra note 8.

12

See Jerome J. Kubin, Docket No. 03-1830 (issued October 1, 2003).

4

available to appellant. Accordingly, appellant should not be penalized for the employing
establishment’s failure to submit such information.13
The need for this evidence is important in view of the differing opinions of the physicians
that either examined appellant or reviewed his records. As noted, Dr. Allstadt both supported
and negated causal relationship. Dr. Keebler negated causal relationship finding that appellant’s
hearing loss pattern was consistent with presbycusis while OWCP’s medical adviser disagreed
with Dr. Keebler explaining that appellant’s hearing loss was materially in excess of what would
be attributed to presbycusis. As noted, both Dr. Keebler and the medical adviser did not have
monitoring audiograms to help them document the type of hearing loss changes that appellant
experienced during the period of his employment.
It is well established that proceedings under FECA are not adversarial in nature and
OWCP is not a disinterested arbiter. While an employee has the burden to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence and has the
obligation to see that justice is done.14 On remand OWCP should again request audiograms and
any pertinent information regarding appellant’s occupational noise exposure from the employing
establishment. In particular, OWCP should obtain the records referenced by Dr. Allstadt. Upon
receipt of such information, OWCP should prepare a statement of accepted facts and develop the
medical evidence by referring appellant to an appropriate Board-certified otolaryngologist for
appropriate testing and a rationalized medical opinion regarding whether he sustained a hearing
impairment causally related to occupational noise exposure. After conducting such further
development as it may find necessary, OWCP shall issue an appropriate merit decision.15
CONCLUSION
The Board finds that the case is not in posture for decision and must be remanded for
further development of the record.

13

See id.

14

William J. Cantrell, 34 ECAB 1233 (1983); E.J., Docket No. 09-1481 (issued February 19, 2010).

15

The Board notes counsel’s argument on appeal that the OWCP medical adviser’s opinion instead of
Dr. Keebler’s should have constituted the weight of the medical evidence. In light of the Board’s disposition, this
contention is moot.

5

ORDER
IT IS HEREBY ORDERED THAT the December 15, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: October 21, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, 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
__________________________________________
K.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0104
Issued: February 24, 2022

Case Submitted on the Record

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

JURISDICTION
On October 29, 2020 appellant, through counsel, filed a timely appeal from an August 26,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective January 17, 2020, as she no longer had
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.

residuals or disability causally related to the accepted October 8, 2005 employment injury; and
(2) whether appellant has met her burden of proof to establish continuing residuals or disability on
or after January 17, 2020, causally related to her accepted October 8, 2005 employment injury.
FACTUAL HISTORY
On October 8, 2005 appellant, then a 49-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date she suffered injuries when she fell down wet stairs
while in the performance of duty. She stopped work that day and has not returned. OWCP
assigned the claim OWCP File No. xxxxxx916 and accepted it for thoracic or lumbosacral neuritis
or radiculitis, brachial neuritis or radiculitis, displacement of thoracic intervertebral disc without
myelopathy, displacement of cervical intervertebral disc without myelopathy, and sprain of right
shoulder and upper arm. It paid appellant wage-loss compensation on the supplemental rolls as of
November 25, 2005, and on the periodic rolls as of March 19, 2006.3 On February 27, 2008
appellant underwent an OWCP-authorized cervical discectomy and decompression at C5-C8 and
C6-C7, with anterior cervical interbody fusion at C5-C8 and C6-C7.
In a November 17, 2016 medical report, Dr. Gregory J. Lawler, a Board-certified
anesthesiologist, indicated that appellant continued with lumbar pain.
In a March 14, 2018 medical report, Dr. Mark Filippone, a Board-certified physiatrist,
opined that appellant was totally disabled from work.
On August 9, 2019 OWCP referred appellant for a second opinion medical examination
with Dr. Stanley Askin, a Board-certified orthopedic surgeon to determine the status of appellant’s
accepted condition and work capacity. In a September 13, 2019 report, Dr. Askin reviewed an
August 7, 2019 statement of accepted facts (SOAF), which did not reference appellant’s accepted
injury in OWCP File No. xxxxxx390.4 He also reviewed a September 4, 2015 magnetic resonance
imaging (MRI) scan of appellant’s right shoulder and a January 14, 2019 MRI scan of her lumbar
spine. Dr. Askin noted appellant’s physical examination findings, including findings involving
the right shoulder and bilateral carpal tunnel. He indicated that appellant’s physical presentation
was one of overt pain behavior. Dr. Askin opined that there were no objective findings, other than
the changes imposed by the surgery upon her cervical spine and age-related changes, and that her
subjective complaints were markedly exaggerated compared with objective findings. He opined
that appellant had fully recovered from the accepted conditions resulting from her 2005 injury,
given the 14-year period of convalescence. Dr. Askin concluded that appellant had no need for
further medical treatment and that she could return to her date-of-injury position as a mail handler
as there was no objective manifestation of any musculoskeletal consequence of the October 8,
2005 injury.
On October 1, 2019 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits, finding that the report of second opinion physician
3

Appellant has a prior claim for an April 12, 2002 traumatic injury, accepted under OWCP File No. xxxxxx390 for
right shoulder impingement syndrome.
4

Id.

2

Dr. Askin represented the weight of the medical evidence that appellant no longer had any
residuals or continuing disability from work due to her October 8, 2005 employment injury. It
afforded her 30 days to submit additional evidence or argument.
In a letter dated October 9, 2019, appellant, through counsel, alleged that the SOAF
provided to Dr. Askin was deficient as it failed to note that appellant’s February 27, 2008 cervical
fusion surgery was authorized by OWCP, and it failed to reference appellant’s prior claims.
By decision dated January 16, 2020, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective January 17, 2020. It found that the weight of
the medical evidence, represented by Dr. Askin’s report, established that she no longer had
residuals or disability from work due to her October 8, 2005 employment injury.
On January 23, 2020 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held telephonically on
April 29, 2020. Appellant submitted additional evidence, including: a November 30, 2007 MRI
scan of the cervical spine; September 19, 2008 cervical spine x-rays; January 14, 2009 MRI scan
of the lumbar spine; September 4, 2015 MRI scan of the right shoulder; November 8, 2019 cervical
spine x-ray report; a November 8, 2019 right shoulder x-ray report; and a November 8, 2019
lumbar MRI scan report. The November 8, 2019 cervical spine x-ray report noted reversal of the
normal lordotic curvature in the lateral view with associated mild flexion deformity with convexity
towards the left and restriction of motion in extension, the November 8, 2019 right shoulder x-ray
report noted a high riding humeral head, and the November 8, 2019 lumbar MRI scan noted
posterior disc herniation at L5-S1 with associated annular tear, slight straightening of the normal
lordotic curvature of the lumbar spine suggestive of muscle spasm and lumbar myalgia, and
umbilical hernia containing omental adipose tissue.
In an October 31, 2019 medical report, Dr. Laura E. Ross, an osteopathic physician Boardcertified in emergency medicine, noted positive examination findings and provided an impression
of history of cervical, thoracic, and lumbar spinal disc pathology and right shoulder impingement.
She opined that appellant was currently disabled and unable to work due to her injuries.
In a December 11, 2019 report, Dr. Ross reviewed appellant’s recent lumbar MRI scan,
cervical x-ray and right shoulder x-ray reports and provided examination findings, which included
right shoulder crepitus with positive impingement signs. She opined that appellant appeared to
have a herniated disc at L5-S1, cervical spondylosis and possible junctional syndrome above the
fusion in her neck, and impingement of her right shoulder. Dr. Ross recommended pain
management, which she opined was medically necessary and causally related to the October 8,
2005 employment injury.
A hearing was held on April 29, 2020. By decision dated June 25, 2020, the hearing
representative affirmed OWCP’s January 16, 2020 termination decision, finding that no
rationalized conflicting medical evidence had been received, which disagreed with Dr. Askin’s
report. The hearing representative found, however, that further development was required to
determine whether appellant’s work-related injuries had resolved. The hearing representative
related that the instant case should be administratively combined with OWCP File No. xxxxxx390,
that the SOAF should be updated, and that all pertinent medical evidence from appellant’s prior

3

shoulder injury should be referred to Dr. Askin. Dr. Askin was then to provide a supplemental
report addressing whether appellant had residuals of her October 8, 2005 employment injury. The
hearing representative also indicated that appellant’s November 8, 2019 diagnostic tests should be
referred to Dr. Askin for review.
On July 16, 2020 OWCP administratively combined appellant’s present claim with OWCP
File No. xxxxxx390, with the present claim serving as the master file number. It then issued an
updated SOAF5 and referred the case record to Dr. Askin for a supplemental opinion regarding
whether appellant had residuals of her April 12, 2002 and October 8, 2005 employment injuries
and if further medical treatment was warranted due to the accepted injuries.
In a June 5, 2020 report, Dr. Ross indicated that she disagreed with Dr. Askin’s conclusions
in his September 13, 2019 report. She opined, based in part on diagnostic testing not available to
Dr. Askin, that appellant’s conditions from the October 8, 2005 work-related injury had not
resolved as she had continued findings consistent with her complaints after the October 8, 2005
injury. Dr. Ross also opined that, since appellant had long-term sequelae resulting from her
employment injuries, she was unable to work full-time, full duty.
In a July 29, 2020 supplemental report, Dr. Askin reviewed the July 16, 2020 SOAF and
the diagnostic evidence and medical reports, which were received following his September 13,
2019 evaluation. He opined that the updated documentation was unpersuasive that appellant’s
condition persisted for either the April 12, 2002 or October 8, 2005 injuries that would preclude
her from resuming her date-of-injury employment. Dr. Askin also opined that further medical
treatment was not warranted.
By decision dated August 26, 2020, OWCP denied modification of the January 16, 2020
termination decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.6 It may not terminate compensation
without establishing that the disability had ceased or that it was no longer related to the

5

The July 16, 2020 SOAF referenced OWCP File No. xxxxxx390 and listed appellant’s diagnostic testing, her
February 27, 2008 spinal surgery, and second opinion examinations.
6

See S.H., Docket No. 19-1855 (issued March 10, 2021); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

employment. 7 OWCP’s burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 17, 2020, as she no longer had residuals
or disability causally related to the accepted October 8, 2005 employment injury.
OWCP based its decision to terminate appellant’s wage-loss compensation and medical
benefits on the September 13, 2019 opinion of Dr. Askin, OWCP’s second opinion physician, who
found that the accepted conditions had ceased with no residuals and that appellant had no longer
had disability causally related to the accepted October 8, 2005 employment injury.
The Board finds, however, that the SOAF provided to Dr. Askin on August 7, 2019 was
deficient, as it failed to note that appellant had a prior claim pertaining to her accepted right
shoulder condition under OWCP File No. xxxxxx390 and that the February 27, 2008 spinal
surgery had been authorized by OWCP. OWCP’s procedures dictate that, when an OWCP medical
adviser, second opinion specialist, or impartial medical examiner renders a medical opinion based
on a SOAF, which is incomplete or inaccurate, or does not use th e SOAF as the framework in
forming his or her opinion, the probative value of the opinion is seriously diminished or negated
altogether.9 The Board finds that as Dr. Askin based his September 13, 2019 report on an
inaccurate SOAF, the probative value of his opinion is diminished. 10
Once OWCP undertook development of the record it was required to complete
development of the record by procuring medical evidence that would resolve the relevant issue in
the case.11 As OWCP did not provide an accurate SOAF to the second opinion physician, the
Board finds that it did not meet its burden of proof in terminating appellant’s wage-loss
compensation and medical benefits. 12
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
entitlement to wage-loss compensation and medical benefits, effective January 17, 2020, as she no
7

G.T., Docket No. 18-01302 (issued October 22, 2019); A.G., Docket No. 18-0749 (issued November 7, 2018); see
I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).
8

See T.M., Docket No. 19-1068 (issued March 30, 2021); R.R., Docket No. 19-0173 (issued May 2, 2019); Del K.
Rykert, 40 ECAB 284 (1988).
9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); see S.C., Docket No. 18-1011 (issued March 23, 2020).
10

See P.C., Docket No. 20-0935 (issued February 19, 2021).

11

See C.B., Docket No. 20-0629 (issued May 26, 2021); J.F., Docket No. 17-1716 (issued March 1, 2018).

12

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5

longer had residuals or disability causally related to her accepted October 8, 2005 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the August 26, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 24, 2022
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Carol Stream, IL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-496
Issued: October 5, 2011

Case Submitted on the Record

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

JURISDICTION
On December 21, 2010 appellant filed a timely appeal of a December 16, 2010 decision
of the Office of Workers’ Compensation Programs (OWCP) denying her application for
reconsideration without merit review of the claim. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the December 16, 2010 nonmerit decision. Since more than 180 days elapsed between the last
merit decision of September 29, 2009 to the filing of this appeal, the Board lacks jurisdiction to
review the merits of the claim.
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant review of the merits under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 31, 2006 appellant, then a 50-year-old supervisor, filed a traumatic injury claim
(Form CA-1) alleging that she sustained injuries on May 30, 2006 when she was struck by an allpurpose container. On June 19, 2006 OWCP accepted the claim for sprain/strain of the neck, left
medial collateral ligament (MCL) and left ankle.2 Appellant also filed a CA-1 for an injury on
November 16, 2006 when she had to reach for her chair as it rolled underneath her.3 On
February 14, 2007 OWCP accepted her claim for lumbar sprain, right knee and leg sprain and
sprain of other specified site.
On May 5, 2008 appellant filed an April 16, 2008 notice of recurrence of disability (Form
CA-2a) commencing March 22, 2008. She stated that she had never recovered from the original
injuries and she stopped working on March 26, 2008. By decision dated July 22, 2008, OWCP
denied the claim for a recurrence of disability. It found the medical evidence was insufficient to
establish causal relation.
Appellant requested a hearing before an OWCP hearing representative, which was held
on November 18, 2008. By decision dated February 12, 2009, the hearing representative
affirmed the denial of a recurrence of disability.
By decision dated March 18, 2009, OWCP denied claims for compensation for
intermittent periods from April 29 to November 7, 2008.4 Appellant requested a review of the
written record.
In a decision dated September 29, 2009, an OWCP hearing representative affirmed the
March 18, 2009 OWCP decision. The hearing representative noted that a report dated April 14,
2008 from a physician selected as a referee physician, Dr. Martin Saltzman, found appellant
could return to her previous work without restriction.5
By letter dated September 21, 2010, appellant requested reconsideration of her claim.
She stated that she had told the truth regarding her claim, and alleged that an attending
orthopedic surgeon, Dr. Jacob Salomon, had made a false statement regarding her history.6
Appellant alleged that postal inspectors had interfered with her claim and withheld the
September 29, 2009 decision from her mail.
The record contains medical evidence that was submitted after September 29, 2009. In a
report dated April 30, 2010, Dr. Bruce Montella, an orthopedic surgeon, stated that appellant had
2

OWCP also stated in a July 22, 2008 decision that the claim was accepted for knee sprain.

3

This claim was developed under a separate OWCP claim number. The two claims were subsequently combined
for administrative purposes.
4

Appellant had filed claims for compensation (Form CA-7) for these periods.

5

Dr. Saltzman noted that he had viewed a videotape of appellant from 2006 performing certain activities.

6

In a report dated October 28, 2006, Dr. Salomon stated that appellant had a recent injury where a sports utility
vehicle had struck appellant.

2

been treated since January 17, 2008. He stated that appellant had ongoing difficulties with her
knees, neck shoulder and back, as a result of work-related injuries. Dr. Montella stated that
appellant was permanently and totally disabled. In a report dated July 14, 2010, Dr. Salomon
stated that appellant had seven different claims for injury since 1991.7 He indicated that
appellant now had degenerative changes.
By decision dated December 16, 2010, OWCP determined that the application for
reconsideration was insufficient to warrant review of the merits of the claim for compensation.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8
OWCP regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”9 Section
10.608(b) states that any application for review that does not meet at least one of the
requirements listed in section 10.606(b)(2) will be denied by OWCP without review of the merits
of the claim.10
ANALYSIS
Appellant submitted an application for reconsideration of the September 29, 2009 merit
decision by OWCP. The only issue is whether her application and the evidence submitted meets
one of the standards that would require OWCP to reopen the case for further merit review. The
Board notes that the September 29, 2009 OWCP decision was restricted to specific claims for
disability compensation during intermittent periods from April 29 to November 7, 2008.
Appellant has not shown OWCP erroneously applied or interpreted a specific point of
law. She did not discuss a specific point of law, or present evidence or argument showing that
OWCP erroneously applied or interpreted such point of law. With respect to the second
standard, advancing a relevant legal argument not previously considered by OWCP, appellant
did not meet this standard. She did not discuss a new and relevant legal argument regarding her
claim. Appellant referred generally to postal inspectors interfering with her claim, withholding
her mail and listening to her conversations. She did not advance any new and relevant legal
argument with respect to her claim for compensation from April 29 to November 7, 2008.

7

Dr. Salomon indicated that six of the claims were combined under the current file, but the evidence indicated
that only the May 30 and November 16, 2006 claims are included in the current master file.
8

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
9

20 C.F.R. § 10.606(b)(2).

10

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

3

As to the third standard, the submission of relevant and pertinent evidence not previously
considered by OWCP, the Board notes that the record contains numerous medical reports and
statements from appellant received between September 29, 2009 and December 16, 2010. The
issue presented is a medical issue regarding any employment-related disability in 2008. Some of
the medical evidence had previously been submitted prior to September 29, 2009, either in the
May 31 or November 16, 2006 claims.11 With respect to new evidence, none of the reports
discuss disability during the relevant periods in question from April 29 to November 7, 2008.
The April 30, 2010 report from Dr. Montella, for example, generally opined that appellant was
disabled as of that date. While this may be relevant to a claim for compensation as of the date of
the report, but it does not discuss disability in 2008. There were no new medical reports
submitted that are relevant to the specific medical issue adjudicated in the September 29, 2009
decision. Accordingly, the Board finds appellant did not meet the third standard.
Since appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent evidence not previously considered by OWCP, she did not meet any of the
requirements of 20 C.F.R. § 10.606(b)(2). In accord with 20 C.F.R. § 10.608, OWCP properly
declined to review the merits of the claim.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim.

11

The claims were combined prior to the September 29, 2009 decision.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 16, 2010 is affirmed.
Issued: October 5, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elkhorn, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0942
Issued: February 14, 2022

Case Submitted on the Record

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

JURISDICTION
On March 27, 2020 appellant filed a timely appeal from December 30, 2019 and
February 6, 2020 merit decisions 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 eligibility for
continuation of pay (COP).
FACTUAL HISTORY
On November 12, 2019 appellant, then a 41-year-old sales service distribution associate,
filed a traumatic injury claim (Form CA-1) alleging that on October 7, 2019 she strained her left
lower back when she grabbed a package that was not marked as “heavy” from the top of a pallet
1

5 U.S.C. § 8101 et seq.

and felta twinge in her back while in the performance of duty. On the reverse side of the claim
form, appellant’s supervisor, Postmaster J.W., controverted her request for COP because notice of
the injury had not been reported within 30 days, noting that the injury claim was not received until
November 12, 2019.
In a narrative statement, appellant also contended that she injured her left buttock area and
experienced numbness in left top of her toes, at the top of her left foot, in her left leg, and left knee
as a result of the October 7, 2019 incident. She noted that she told coworkers about her injury at
the time, and also informed her supervisor about her claimed injury upon his arrival to work.
Appellant submitted medical evidence in support of her claim.
OWCP, in a development letter dated November 25, 2019, informed appellant of the
deficiencies of her claim. It advised her of the type of medical evidence necessary to establish her
claim. OWCP afforded appellant 30 days to submit the necessary evidence.
Thereafter, OWCP received additional medical evidence.
By decision dated December 30, 2019, OWCP accepted appellant’s claim for lumbosacral
radiculopathy at L5 also noted as lumbar disc herniation with radiculopathy and left foot drop also
noted as weakness of the left extensor hallgus longus.
By separate decision of even date, OWCP denied appellant’s claim for COP, finding that
she had failed to report the October 7, 2019 employment injury on a form approved by OWCP
within 30 days, as required. It advised her that the denial of COP did not affect her entitlement to
compensation, and that she could, therefore, file a claim for compensation (Form CA -7) for lost
wages due to her accepted employment injury.
OWCP continued to receive medical evidence.
On January 13, 2020 appellant requested reconsideration of the December 30, 2019
decision regarding COP.
In a January 6, 2020 letter, Postmaster J.W. contended that appellant had timely reported
her work injury to management. He claimed that he failed to enter her accident in a timely manner.
Postmaster J.W. related that he learned that his failure to timely enter the accident affected her
claim. He maintained that it was his mistake and appellant should not be penalized.
OWCP continued to receive medical evidence.
By decision dated February 6, 2020, OWCP denied modification of its December 30, 2019
decision.

2

LEGAL PRECEDENT
Section 8118 of FECA 2 provides for payment of continuation of pay, not to exceed 45 days,
to an employee who has filed a claim for a period of wage loss due to traumatic injury with his or
her immediate supervisor on a form approved by the Secretary of Labor within the time specified
in section 8122(a)(2) of this title. Section 8122(a)(2) provides that written notice of injury must
be given as specified in section 8119. The latter section provides in part that notice of injury shall
be given in writing within 30 days after the injury. 3 Claims that are timely under section 8122 are
not necessarily timely under section 8118(a). FECA authorizes COP for an employee who has
filed a valid claim for traumatic injury. 4 Section 8118(a) makes COP contingent on the filing of a
written claim within 30 days of the injury. When an injured employee makes no written claim for
a period of wage loss within 30 days, he or she is not entitled to COP, notwithstanding prompt
notice of injury. 5
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish eligibility for
COP.
On November 12, 2019 appellant filed a claim for an October 7, 2019 traumatic injury.
Because she did not file a written claim within 30 days from the date of injury, the time specified
in sections 8118(a) and 8122(a)(2) of FECA,6 she is not entitled to COP. When an injured
employee makes no written claim for a period of wage loss within 30 days, she is not entitled to
COP, notwithstanding prompt notice of injury. Moreover, although appellant contended that she
verbally notified her supervisor about her injury within the 30-day period, oral notice to the
supervisor is insufficient to satisfy the requirements of 5 U.S.C. § 8118.7 Further, Postmaster
J.W.’s contention in his January 6, 2020 letter that appellant timely reported her October 7, 2019
employment injury to management, but that he failed to enter it in a timely manner, does not
establish the requisite notice.8 Because FECA makes no provision for an exception to the time
limitation in section 8118(a), no exceptional or mitigating circumstance, including error by the

2

Supra note 1 at § 8118.

3

Id. at § 8119(a), (c). See also Gwen Cohen-Wise, 54 ECAB 732 (2003).

4

Id. at § 8118(a).

5

L.S., Docket No. 16-0088 (issued June 10, 2016); P.R., Docket No. 08-2239 (issued June 2, 2009). See also W.W.,
59 ECAB 533 (2008).
6

5 U.S.C. §§ 8118(a), 8122(a)(2).

7

See J.M., Docket No. 09-1563 (issued February 26, 2010); R.J., Docket No. 08-2338 (issued June 9, 2009); Ann M.
Yelle, Docket No. 98-2508 (issued March 9, 2000).
8

See David C. English, Docket No. 03-0495 (issued May 12, 2003).

3

employing establishment, can entitle a claimant to COP who has not filed a written claim within
30 days of the date of injury. 9
Appellant did not submit written notice of injury on an approved form until November 12,
2019 more than 30 days after the October 7, 2019 employment injury, when she submitted Form
CA-1.10 Therefore, the Board finds that she is not entitled to COP.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish eligibility for
COP.
ORDER
IT IS HEREBY ORDERED THAT the December 30, 2019 and February 6, 2020
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 14, 2022
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

9

See Laura L. Harrison, 52 ECAB 515 (2001). See also S.C., Docket No. 10-0460 (issued January 26, 2011).

10

See E.M., Docket No. 18-0454 (issued February 20, 2020); Robert E. Kimzey, 40 ECAB 762 (1989).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, VEHICLE
MAINTENANCE FACILITY, Providence, RI,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0623
Issued: October 4, 2018

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 January 30, 2018 appellant filed a timely appeal from a January 8, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated October 21, 2014, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 25, 2008 appellant, then a 38-year-old mechanic, filed an occupational
disease claim (Form CA-2) alleging that he developed soreness in his hands, wrists, and arms
working with wrenches and other tools while in the performance of duty. He identified
September 24, 2006 as the date he first became aware of his condition. However, it was not until
September 24, 2008 that appellant first realized his condition was caused or aggravated by factors
of his federal employment. Appellant continued to work.
On March 27, 2009 OWCP advised appellant that his claim had been accepted for bilateral
carpal tunnel syndrome and left ulnar nerve compression.2
On May 26, 2009 appellant underwent authorized left open carpal tunnel release and
release of the left canal of Guyon. He stopped work and received wage-loss compensation for
temporary total disability. On September 15, 2009 appellant underwent authorized right
endoscopic carpal tunnel release. He continued to receive wage-loss compensation for temporary
total disability.
On November 30, 2009 appellant filed a schedule award claim (Form CA-7).
By development letter dated December 10, 2009, OWCP requested that appellant submit
an impairment evaluation from his attending physician with an opinion as to whether he had
reached maximum medical improvement (MMI) and whether he had a permanent impairment in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).3 It afforded him 30 days to submit the necessary
evidence.
On January 11, 2010 appellant returned to full-time, limited duty as a modified auto
technician.
A March 8, 2010 report by Dr. Leonard F. Hubbard, a Board-certified orthopedic hand
surgeon, was received. He indicated that appellant had reached MMI on March 8, 2010.
Dr. Hubbard reported that appellant had no objective findings and no restriction of motion upon
physical examination. He completed a permanent impairment worksheet, which showed that
according to the Right Upper Extremity table and Left Upper Extremity table, appellant had zero
percent permanent impairment of the bilateral upper extremities.

2
OWCP initially denied appellant’s occupational disease claim by decision dated November 19, 2008. Appellant
subsequently requested a review of the written record, and by decision dated March 19, 2009, an OWCP hearing
representative reversed the November 19, 2008 decision and accepted appellant’s claim for bilateral carpal tunnel
syndrome and left ulnar nerve compression.
3

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

2

On January 29, 2013 appellant was separated from his employment.4
Dr. Hubbard continued to treat appellant. In a March 8, 2013 examination note, he reported
a QuickDASH (Disabilities of the Arm, Shoulder, and Hand) score of 73 bilaterally and
symmetrical grip strength. Dr. Hubbard indicated that appellant was at MMI. He opined that
based on appellant’s lack of function and altered sensation, he had seven percent permanent
impairment of each upper extremity according to the fifth edition of the A.M.A., Guides.5
In a July 3, 2013 letter and impairment evaluation form, Dr. Hubbard recounted that
appellant was at MMI. He reported that according to the sixth edition of the A.M.A., Guides,
appellant had five percent permanent impairment of the left upper extremity and four percent
permanent impairment of the right upper extremity. In a July 18, 2013 letter, Dr. Hubbard again
noted that appellant had reached MMI. He reported that according to the sixth edition of the
A.M.A., Guides appellant had four percent permanent impairment of each upper extremity as a
result of the injury and treatment.
In an August 14, 2013 letter, Dr. Hubbard explained that appellant was seen for “an end
result examination and loss of use rating.” He indicated that according to the sixth edition of the
A.M.A., Guides appellant had four percent whole person impairment, four percent left upper
extremity impairment, and four percent right upper extremity impairment. Dr. Hubbard noted that
appellant had reached MMI. He provided a medical impairment rating report, which indicated that
he utilized Table 15-23 and Table 15-7 of the A.M.A., Guides.
OWCP referred appellant, along with a statement of accepted facts (SOAF) and the medical
record, to Dr. Steven A. Silver, a Board-certified orthopedic surgeon, for a second opinion
examination in order to determine whether appellant sustained ratable impairment of his upper
extremities in accordance with the A.M.A., Guides. In a January 7, 2014 report, Dr. Silver
reviewed appellant’s history of injury and discussed his medical records. Upon physical
examination of appellant’s upper extremities, he observed decreased sensation in the thumb, index,
long, ring, and little fingers on the left and right hands. Dr. Silver also reported opponens pollicis
atrophy, weakness, and decreased range of motion of the bilateral wrists. He diagnosed status post
carpal tunnel release of the bilateral wrists, status post ulnar nerve release of the left wrist, recurrent
carpal tunnel syndrome of the bilateral wrists, ulnar nerve impingement of the right wrist, and
partial ankyloses of the right hand.
Dr. Silver noted that appellant had reached MMI on or about August 14, 2013. He reported
that according to the sixth edition of the A.M.A., Guides, Table 15-23 on page 449, appellant had
grade modifiers of 2 for functional history and physical examination and 1 for test findings for loss
of function of his median nerves, resulting in six percent loss of function of the bilateral upper
extremities. Regarding appellant’s left ulnar nerve, Dr. Silver noted grade modifiers of 2 for
physical examination and functional history and 1 for test findings, resulting in a functional scale
of 3. He calculated that appellant’s loss of function was a 5/3 with an increase of grade modifier
4

Appellant subsequently filed a notice of recurrence (Form CA-2a) claiming disability, which OWCP denied by
decision date May 29, 2013.
5

A.M.A., Guides (5th ed. 2001).

3

3 due to severe symptoms and a total loss of function of 6. Dr. Silver concluded that appellant had
right upper extremity loss of function of nine and left upper extremity loss of function of nine.
In a March 11, 2014 report, Dr. Morley Slutsky, a Board-certified occupational medicine
specialist and OWCP medical adviser, reviewed appellant’s claim, including Dr. Silver’s
January 7, 2014 report, and disagreed with his findings. He reported that appellant had three
percent permanent impairment of the right upper extremity and five percent permanent impairment
of the left upper extremity for his accepted conditions of bilateral carpal tunnel syndrome and left
ulnar nerve compression. Dr. Slutsky noted a date of MMI of January 7, 2014, the date of
Dr. Silver’s examination. He explained that when there is more than one compression neuropathy
in the same upper extremity, the highest impairment is taken at 100 percent and the next highest
is taken at 50 percent. Accordingly, Dr. Slutsky reported that with regard to appellant’s left upper
extremity, he had one impairment of three percent for carpal tunnel syndrome combined with
another impairment of two percent for left cubital tunnel syndrome for a total of 5 percent left
upper extremity impairment.6 Regarding appellant’s bilateral carpal tunnel syndrome, he utilized
Table 15-23 on page 449, and indicated that appellant had grade modifiers of 1 for testing and
history and 2 for physical examination, resulting in a final bilateral upper extremity impairment of
three percent. Regarding appellant’s left cubital tunnel syndrome, Dr. Slutsky reported that
appellant had grade modifiers of 1 for testing, history, and physical examination for a left upper
extremity permanent impairment rating of three percent.
In an April 16, 2014 report, Dr. Silver reviewed Dr. Slutsky’s March 11, 2014 report and
noted that he had “no disagreement with Dr. Slutsky’s evaluation.”
OWCP referred appellant’s claim back to Dr. Slutsky for clarification and review. He
explained that he agreed with Dr. Silver’s impairment rating of six percent for the right upper
extremity due to appellant’s carpal tunnel condition, but determined that appellant had eight
percent total left upper extremity impairment instead of Dr. Silver’s assignment of nine percent.
Dr. Slutsky noted that he assigned two percent nerve impairment while Dr. Silver assigned three
percent impairment. He explained that he disagreed with Dr. Silver’s assignment of grade
modifiers in obtaining his impairment rating.7
On October 21, 2014 OWCP granted appellant a schedule award for eight percent
permanent impairment of the left upper extremity and six percent permanent impairment of the
right upper extremity, for a total of 43.68 weeks’ compensation. The award ran from January 7
to November 8, 2014. OWCP found that the weight of the medical evidence rested with the

6

Dr. Slutsky calculated that ½ of 3 percent was 1.5 percent, which was rounded to 2 percent impairment. He
combined the 3 percent impairment for left carpal tunnel syndrome and the 2 percent impairment for left cubital tunnel
syndrome for a total of 5 percent left upper extremity impairment.
7

Dr. Slutsky indicated that he assigned a grade modifier of 2 for functional history, as opposed to Dr. Silver’s
assignment of 3, because there was documentation that appellant was unable to perform at least one of the activities
of daily living and he described mild, intermittent symptoms. He also noted a grade modifier of 1 for physical
examination, instead of Dr. Silver’s assignment of 2, because of decreased sensation in the ulnar nerve distribution.
Dr. Slutsky explained that two-point discrimination testing was not documented, so appellant was not eligible for a
score of 1 or higher.

4

July 31, 2014 report of Dr. Slutsky, an OWCP medical adviser, who accurately applied the
A.M.A., Guides and provided an impairment rating in accordance with the A.M.A., Guides.
In a letter dated September 8, 2017, appellant asserted that the dates of his schedule award
from January 7 to November 8, 2014 were incorrect. He alleged that his schedule award should
be applied from the date of injury on September 24, 2006 to March 8, 2010, the date of MMI
certified by his treating physician. Appellant noted that it was erroneous to use Dr. Silver’s
examination date as the MMI date because Dr. Silver never treated him, but only reviewed his
medical records. He explained that because of the MMI date that OWCP used to calculate his
schedule award, the Social Security Administration (SSA) informed him that he had a substantial
overpayment which he was expected to reimburse. Appellant alleged that he should not be liable
for reimbursement to SSA based on erroneous dates used by OWCP.
On October 17, 2017 an OWCP claims examiner informed appellant via telephone that the
MMI date on the schedule award decision was medically driven, and not merely an administrative
date change. He explained that the MMI date could affect pay rate. The claims examiner also
advised appellant that he needed to resolve the issue with SSA because it could not “undo” the
schedule award that was already paid.
In an undated letter received by OWCP on December 4, 2017, appellant indicated that he
was requesting reconsideration of the dates of his schedule award. He asserted that the award
should have run from September 24, 2006, the date of injury, to March 8, 2010, the date he
returned to work and the MMI date certified by his treating physician. Appellant alleged that
significant weight should be given to his treating physician, as opposed to Dr. Silver, because
Dr. Silver did not treat him. He noted that the dates that OWCP used to calculate the period of his
schedule award had created an overpayment with his SSA benefits. Appellant requested that
OWCP correct the dates so that he was not financially burdened by OWCP’s administrative error.
No additional evidence was received with his reconsideration request.
By decision dated January 8, 2018, OWCP denied appellant’s reconsideration request. It
found that his December 4, 2017 reconsideration request was untimely filed and failed to
demonstrate clear evidence that OWCP’s decision was in error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.8 This section vests OWCP with discretionary authority to determine whether it
will review an award for or against compensation.9 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is timely.10
8

Thankamma Matthews, 44 ECAB 765, 768 (1993).

9

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

10

20 C.F.R. § 10.607(a). 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. 5 U.S.C. § 8128(a); Leon D.
Faidley, Jr., 41 ECAB 104, 111 (1989).

5

In order to be timely, a request for reconsideration must be received by OWCP within one year of
the date of OWCP’s merit decision for which review is sought. Timeliness is determined by the
document receipt date of the reconsideration request, that is, the received date in the Integrated
Employees’ Compensation System (iFECS).11
OWCP, however, may not deny an application for reconsideration solely because the
application was untimely filed. It may consider an untimely application for reconsideration if the
evidence or argument contained in the reconsideration request demonstrates clear evidence of error
on the part of OWCP.12 In this regard, OWCP will conduct a limited review of how the newly
submitted evidence bears on the prior evidence of record.13
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.14 Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error.15 It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion.16 The evidence submitted must not only be of sufficient probative
value to create a conflicting medical opinion or demonstrate 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.17 The Board has held that even
a report such as a detailed, well-rationalized medical report which, if submitted before the denial
was issued, would have created a conflict in medical evidence requiring further development is
insufficient to demonstrate clear evidence of error.18
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that it abused its discretion in denying merit review
in the face of such evidence.19

11
Id. at § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b)
(February 2016).
12

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

13

See id. at § 10.607(b); Nelson T. Thompson, 43 ECAB 919 (1992).

14

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

15

Jimmy L. Day, 48 ECAB 652 (1997).

16

See Leona N. Travis, 43 ECAB 227, 240 (1991).

17

Annie L. Billingsley, 50 ECAB 210 (1998).

18

A.R., Docket No. 15-1598 (issued December 7, 2015).

19

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, supra note 8.

6

ANALYSIS
OWCP’s last merit decision dated October 21, 2014 granted appellant a schedule award of
eight percent left upper extremity permanent impairment and six percent right upper extremity
permanent impairment. On December 4, 2017 appellant requested reconsideration of the schedule
award decision.20 He did not take issue with the percentage of impairment awarded, but challenged
OWCP’s finding that he reached MMI as of January 7, 2014. By decision dated January 8, 2018,
OWCP denied appellant’s request for reconsideration because it was untimely filed and failed to
demonstrate clear evidence of error.
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. Timeliness is determined by the document receipt date of the
reconsideration request (the received date in iFECS).21 By decision dated October 21, 2014,
OWCP granted appellant a schedule award. It received his request for reconsideration on
December 4, 2017, which was outside the one-year time limit. Consequently, appellant must
demonstrate clear evidence of error by OWCP with regard to his schedule award claim.22
The Board has reviewed the record and finds that appellant’s arguments on reconsideration
do not raise a substantial question as to the correctness of OWCP’s October 21, 2014 schedule
award decision and are, therefore, insufficient to demonstrate clear evidence of error.
In its most recent merit decision, OWCP granted appellant a schedule award for eight
percent permanent impairment of the left upper extremity and six percent permanent impairment
of the right upper extremity based on the July 31, 2014 report of Dr. Slutsky, an OWCP medical
adviser. The award ran from January 7 to November 8, 2014. In his reconsideration request,
appellant alleges that the period of his schedule award should be applied from the date of injury
on September 24, 2006 to March 8, 2010, the date of MMI certified by his treating physician. He
asserted that it was erroneous for OWCP to use Dr. Silver’s examination date as the MMI date
because Dr. Silver did not treat him.
In assessing eligibility for a schedule award, the medical evidence must show that the
impairment has reached a permanent and fixed state, which is generally referred to as MMI.23
Assuming MMI has been attained, the date of MMI is usually considered to be the date of the
evaluation by the attending physician that is accepted as definitive by OWCP.24 Schedule awards

20
The Board notes that OWCP properly determined that appellant was seeking reconsideration of the October 21,
2014 OWCP schedule award decision, and was not seeking an increased schedule award due to increased impairment
and/or additional exposure. See Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.1602.3(b)
(February 2016); see also J.K., Docket No. 14-1082 (issued November 24, 2014).
21

Supra note 11 at Chapter 2.1602.4(b) (February 2016).

22

Supra note 12; Debra McDavid, 57 ECAB 149 (2005).

23

Supra note 11 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5b(1)
(March 2017).
24

Id. at Chapter 2.808.7b(1).

7

begin on the date of MMI unless circumstances show a later date should be used.25 A retroactive
determination of the date of MMI is not per se erroneous.26 When the medical evidence establishes
that the employee did in fact reach MMI by such date, the determination is proper.27
In order to demonstrate clear evidence of error, the evidence 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.28 As customarily is the case, OWCP’s
identified date of MMI coincided with the date of the medical evaluation that formed the basis of
the schedule award. Appellant failed to provide medical evidence and/or legal justification for
selecting his September 24, 2006 date of injury as the appropriate date of MMI. He also did not
articulate why Dr. Hubbard’s finding of MMI as of March 8, 2010 was a more appropriate date of
MMI.29 Appellant’s statement does not demonstrate clear error on the part of OWCP with respect
to its October 21, 2014 schedule award decision, and fails to shift the weight of the evidence in
favor of him. He did not provide any additional evidence to show that OWCP erred in assigning
an MMI date of January 7, 2014. Appellant has not submitted any evidence, which raises a
substantial question concerning the correctness of OWCP’s schedule award decision and the dates
for which the schedule award applied.30
On appeal appellant reiterates his previous contention that OWCP assigned an erroneous
MMI date of January 7, 2014. He has not, however, demonstrated clear evidence of error on the
part of OWCP. The Board has found that the term “clear evidence of error” is intended to represent
a difficult standard.31 It is not enough merely to show that the evidence could be construed so as
to produce a contrary conclusion. The evidence submitted 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.32
The Board finds that appellant has failed to support his reconsideration request with
evidence or argument demonstrating that OWCP’s October 21, 2014 schedule award decision was
clearly erroneous. Appellant’s request was insufficient to raise a substantial question as to the
correctness of OWCP’s October 21, 2014 decision or shift the weight of the evidence in his favor.

25

Id. at Chapter 2.808.7b(2).

26

Id. at Chapter 2.808.7b(3).

27

Id.

28

Supra note 17.

29
At the time, Dr. Hubbard indicated that appellant had zero percent bilateral upper extremity permanent
impairment.
30

See G.B., Docket No. 16-0319 (issued April 6, 2016).

31

James R. Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.1602.5(a)
(October 2011).
32

Supra note 17.

8

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the January 8, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 4, 2018
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-2410
Issued: March 3, 2009

Case Submitted on the Record

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

JURISDICTION
On August 15, 2008 appellant filed a timely appeal from a January 9, 2008 merit decision
of the Office of Workers’ Compensation Programs and an August 15, 2008 merit decision by a
hearing representative denying her claim for a recurrence of disability. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability
commencing on or after July 21, 2007 causally related to her accepted October 4, 2000
employment injury.
FACTUAL HISTORY
On October 4, 2000 appellant, then a 49-year-old housekeeping aid, filed a traumatic
injury claim (Form CA-1) alleging that while mopping a stairwell that day she slid off the steps

sustaining a right ankle injury. The Office accepted her claim for a minor right ankle sprain.
Appellant returned to full duty on October 15, 2000.1
On August 10, 2007 appellant filed a claim for a recurrence of disability (Form CA-2a),
alleging that on July 21, 2007 she experienced swelling and shooting pain in her right ankle
causing instability and difficulty walking. She noted that she was experiencing symptoms
similar to those of her original injury.
On July 27, 2007 appellant underwent several diagnostic tests on her right ankle. A
magnetic resonance imagining (MRI) scan revealed a longitudinal partial thickness tear of the
distal Achilles tendon. The MRI scan report noted that appellant’s remote history of a fall seven
years ago and that she has experienced persistent intermittent pain, which has recently worsened.
An x-ray showed minimal deformity of the tip of the medial malleolus, which a physician noted
was possibly related to an old trauma.
On July 30, 2007 appellant’s treating physician returned her to regular duty with the
restriction that she not walk over 50 minutes in an hour until she was seen by an orthopedic
surgeon.
On July 31, 2007 appellant accepted a light-duty position requiring performance of her
normal duties, but limiting her walking to no more than 50 minutes an hour.
On August 27, 2007 Dr. Gregory P. Guyton, a Board-certified orthopedic surgeon,
examined appellant, who opined that in July 2007 she experienced an exacerbation of her longstanding, seven-year pain. Physical examination revealed swelling and tenderness over the
calcaneocuboid joint. Dr. Guyton stated that appellant most likely sustained calcaneocuboid
joint arthritis and ordered a computerized tomography (CT) scan.
In a September 10, 2007 follow-up report, Dr. Guyton discussed the results of the CT
scan, finding that appellant sustained dorsal and lateral osteophyte off the calcaneocuboid joint,
which he noted was consistent with an old, problematic avulsion fracture.
In an attending physician’s report (Form CA-20) dated October 12, 2007, Dr. Guyton
noted that appellant had a seven-year history of foot and ankle pain. He reported that appellant
was scheduled for joint debridement surgery on October 18, 2007 and took her off work until
January 1, 2008.
On October 18, 2007 appellant underwent an exostecomy of the right anterior process
calcaneus. In the corresponding surgical report, Dr. Guyton opined that, appellant suffered from
a right anterior process of the calcaneus exostosis associated with a previous inversion injury and
probable avulsion fracture.

1

Appellant subsequently filed a claim for a recurrence on November 8, 2000 for the period October 19
through 25, 2000, which was accepted by the Office. She returned to full duty on October 30, 2000.

2

On October 26, 2007 appellant filed a claim for compensation (Form CA-7) for the
period October 18 through November 3, 2007. She subsequently submitted four additional
claims for compensation covering the period November 4, 2007 through January 1, 2008.
In a November 28, 2007 letter, the Office notified appellant of the deficiencies in her
recurrence claim and requested additional information.
By decision dated January 9, 2008, the Office denied the recurrence claim, finding that
appellant did not submit sufficient evidence establishing that she sustained a recurrence on
July 21, 2007 causally related to her accepted employment injury.
Appellant subsequently submitted an undated statement, where she denied that she
sustained a new injury to her right foot and that she has experienced swelling for years after her
original injury, usually after standing on it for long periods of time. She further submitted a
December 11, 2007 medical report signed by Dr. Edward R. Cohen, a Board-certified orthopedic
surgeon, who reported that appellant was referred by her treating physician for an opinion
addressing the cause of the current right ankle injury. Based on a brief review of appellant’s
medical history and a physical examination, he stated that in his opinion, based on a reasonable
degree of medical probability, the present right ankle complaints were causally related to
appellant’s April 10, 2000 work-related injury.2
On January 22, 2008 appellant requested a review of the written record. In a decision
dated August 15, 2008, the hearing representative denied modification of the January 9, 2008
decision, finding that she did not provide sufficient supporting evidence to establish her
recurrence claim.
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”3 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and

2

The Board notes that Dr. Cohen stated that appellant’s injury occurred on April 10, 2000. It appears as though
the doctor merely transposed the date of appellant’s injury, which occurred on October 4, 2000 and intended to refer
to the accepted injury at issue in this case.
3

R.S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007); 20 C.F.R. § 10.5(x).

3

supports that conclusion with sound medical reasoning.4 Where no such rationale is present,
medical evidence is of diminished probative value.5
ANALYSIS
The Office accepted that on October 4, 2000, appellant sustained a minor right ankle
sprain due to her employment. The issue is whether appellant established that she sustained a
recurrence of disability commencing July 21, 2007 causally related to her employment injury.
The Board finds that appellant has not met her burden of proof.
In order to establish a claim for a recurrence, appellant is required to submit evidence
providing rationalized medical opinion describing how her current condition is related to the
accepted employment injury.6 In support of her claim, she submitted several medical reports
from Dr. Guyton, dated August 27 through October 18, 2007, discussing her current right ankle
condition. While Dr. Guyton continuously indicated that appellant suffered pain in her right
ankle for seven years and that her current condition is related to a prior inversion injury and
probable avulsion fracture, he fails to specifically identify appellant’s accepted work injury as
the cause of her current condition. Further, his opinions addressing causation lack rationalized
explanations describing the relationship between appellant’s history of right ankle injury and her
current condition and thus are of little probative value.7
Similarly, Dr. Cohen’s December 11, 2007 medical report is not sufficient to establish a
recurrence. Here, he gave a brief summary of appellant’s medical history and, after a physical
examination, stated that appellant’s current right ankle complaints are related to her employment
injury. However, Dr. Cohen did not explain how the prior work injury caused her current
condition nor did he provide any support for his conclusion that the two conditions were causally
related. A physician’s opinion on causal relationship between a claimant’s disability and an
employment injury is not dispositive simply because it is rendered by a physician. To be of
probative value, the physician must provide rationale for the opinion reached.8 The Board finds
that Dr. Cohen’s report is of diminished probative value as he failed to include any discussion
rationalizing his opinion on causal relationship.9
The Board finds that the medical evidence of record is insufficient to establish that
appellant sustained a recurrence of disability due to her accepted right ankle sprain.

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

6

See supra note 3.

7

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

8

Jean Culliton, 47 ECAB 728 (1996); Lucrecia M. Nielsen, 42 ECAB 583 (1991).

9

See Robert Broome, 55 ECAB 339 (2004).

4

CONCLUSION
The Board finds that appellant did not establish that she sustained a recurrence of
disability commencing on or after July 21, 2007 causally related to her accepted October 4, 2000
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2008 decision of the Office of
Workers’ Compensation Programs and the August 15, 2008 decision of the hearing
representative are affirmed.
Issued: March 3, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5