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

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

Docket No. 10-1227
Issued: December 3, 2010

Case Submitted on the Record

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

JURISDICTION
On March 30, 2010 appellant filed a timely appeal from a March 11, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration, as it was untimely and did not show clear evidence of error. As the most recent
merit decision was issued on June 30, 2008, the Board lacks jurisdiction to review the merits of
this case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration, as
it was untimely and failed to demonstrate clear evidence of error.

1

For Office decisions dated November 19, 2008 or later, a claimant has 180 days to file an appeal with the Board.
20 C.F.R. § 501.3(e). For Office decisions issued before November 19, 2008, a claimant had one year in which to
file an appeal. See 20 C.F.R. § 501.3(d)(2).

FACTUAL HISTORY
On May 13, 2008 appellant, then a 51-year-old letter carrier, filed a claim alleging that
she sustained an injury to her left leg and knee on May 9, 2008 when she became pinned against
a truck that was backing up. She did not stop work.
By decision dated June 30, 2008, the Office denied appellant’s claim on the grounds that
the medical evidence was insufficient to establish that she sustained an injury as alleged. It
found that she was pinned against a truck on May 9, 2008 but had not submitted sufficient
medical evidence to show that she sustained a medical condition causally related to the accepted
work event.
On February 18, 2010 appellant requested reconsideration. She related that after the
incident on May 9, 2008 she experienced severe pain in her legs. Appellant stated, “I have been
seeing a doctor regularly and I have been informed that I will need surgery to correct the
problem this accident caused.”
Appellant submitted numerous physical therapy notes and reports from a physician’s
assistant dated throughout 2008. She also submitted a description of the accident dated
May 13, 2008.
By decision dated March 11, 2010, the Office denied appellant’s request for
reconsideration after finding that it was not timely and did not show clear evidence of error.
On appeal, appellant related that she believed that the employing establishment was
following the proper procedures to make sure she was covered by workers’ compensation for her
injury. She enclosed new medical evidence.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a) of the Federal Employees’ Compensation Act.2
As once such limitation, 20 C.F.R. § 10.607 provides that an application for reconsideration must
be sent within one year of the date of the Office decision for which review is sought. The Office
will consider an untimely application only if the application demonstrates clear evidence on the
part of the Office in its most recent merit decision. The application must establish, on its face,
that such decision was erroneous.3
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that the Office made an error (for
example, proof of a miscalculation in a schedule award). Evidence such as a detailed, wellrationalized medical report which, if submitted prior to the Office’s denial, would have created a
2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.607.

2

conflict in medical opinion requiring further development, is not clear evidence of error and
would not require a review of the case on the director’s own motion.4 To establish clear
evidence of error, a claimant must submit evidence relevant to the issue which was decided by
the Office. The evidence must be positive, precise and explicit and must manifest on its face that
the Office committed an error.5
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. Its procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.6 A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.7 As appellant’s
March 11, 2010 request for reconsideration was submitted more than one year after the last merit
decision of record, June 30, 2008, it was untimely. Consequently, she must demonstrate clear
evidence of error by the Office in denying her claim for compensation.8
On February 18, 2010 appellant requested reconsideration. She described the May 9,
2008 work incident and the resulting pain in her legs. Appellant related that a physician told her
that she needed surgery because of the May 9, 2008 incident. The relevant issue, however, is
whether the medical evidence establishes that she sustained an injury to her leg as a result of
being pinned against a truck on May 9, 2008. As this issue is medical in nature, it can only be
resolved through the submission of medical evidence.9 Appellant’s lay opinion on the matter is
not relevant, as the Board has held that lay individuals are not competent to render a medical
opinion.10 Consequently, her contentions are insufficient to establish clear evidence of error by
the Office.
Appellant submitted reports dated 2008 from a physician’s assistant and a physical
therapist. Section 8101(2) of the Act provides that the term physician includes surgeons,
podiatrist, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law.11 Physical therapists and

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991).

5

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman,
55 ECAB 143 (2003).
6

20 C.F.R. § 10.607(a).

7

Robert F. Stone, supra note 5.

8

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

9

George C. Vernon, 54 ECAB 319 (2003).

10

Gloria J. McPherson, 51 ECAB 441 (2000).

11

5 U.S.C. § 8101(2).

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physician’s assistants are not considered physicians as defined under the Act and thus their
reports do not constitute competent medical evidence.12
On appeal, appellant noted her belief that the employing establishment was handling her
claim to make sure that she received appropriate benefits. The issue, however, is whether her
untimely request for reconsideration establishes error by the Office in denying her claim. As the
evidence submitted by appellant is insufficient to raise a substantial question as to the correctness
of the Office’s last merit decision, she has not established clear evidence of error.13
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration as
it was untimely and failed to demonstrate clear evidence of error.14

12

Id; J.M., 58 ECAB 448 (2007); G.G., 58 ECAB 389 (2007); David P. Sawchuck, 57 ECAB 316 (2006);
Allen C. Hundley, 53 ECAB 551 (2002).
13

See D.D., 58 ECAB 206 (2006); Jack D. Johnson, 57 ECAB 593 (2006).

14

Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review evidence for the first time
on appeal. 5 U.S.C. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 11, 2010 is affirmed.
Issued: December 3, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 20-0012
Issued: November 5, 2020

Case Submitted on the Record

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

JURISDICTION
On October 2, 2019 appellant, through counsel, filed a timely appeal from a July 1, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as presented
in the prior appeal are incorporated herein by reference. The relevant facts are as follows.
On January 14, 2011 appellant, then a 44-year-old city carrier, filed a traumatic injury
claim alleging that, on that date, she twisted her left foot and ankle when she slipped on an icy
surface while in the performance of duty. On April 6, 2011 OWCP accepted the claim for left
ankle sprain and left foot sprain and paid her wage-loss compensation benefits on the periodic
rolls.
A magnetic resonance imaging (MRI) scan of the left foot dated March 18, 2011 revealed
pes planus with dorsal hypertrophic changes involving the talonavicular joint, plantar calcaneal
spur, slight edema in the fibulotalar ligament and posterior tibiotalar ligament compatible with a
mild strain, and bone bruise in the plantar aspect of the talus at the talocalcaneal joint. A
September 6, 2011 electromyogram (EMG) was unremarkable.
In a March 1, 2017 report, Dr. Joshua B. Macht, a Board-certified internist, noted
appellant’s history of injury and treatment. He examined appellant and determined maximum
medical improvement (MMI) as of February 24, 2017. Dr. Macht noted diffuse tenderness to
palpation of the left ankle, decreased sensation throughout the left ankle and foot, and grade IV
weakness of the ankle joint. Range of motion (ROM) for the left ankle for dorsiflexion was -10
degrees, plantar flexion 35 degrees, eversion 15 degrees, and inversion 25 degrees. Dr. Macht
noted that the ROM measurements were repeated at least three times for accuracy and to meet the
criteria for validity with the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).4 Utilizing the A.M.A., Guides he
identified the class of diagnosis (CDX), in Table 16-2,5 as a Class 1 strain; tendinitis involving the
posterior tibial, anterior tibial, Achilles, or peroneal tendon, which yielded a default value of 10
percent. Pursuant to Table 16-2, page 501, appellant’s CDX was a Class 1 impairment for
moderate motion deficits. Dr. Macht assigned a grade modifier functional history (GMFH) of 1
and a grade modifier physical examination (GMPE) of 3 based on the lower limb questionnaire
score of 29 out of 100 points. He noted that because appellant’s adjustment score was two higher
than her impairment class it could not be used for grade modification. Dr. Macht noted grade
modifier clinical studies (GMCS) of zero, to find no change from the default value of 10 percent.
He opined that appellant had 10 percent permanent impairment of the left lower extremity (LLE).
On March 31, 2017 appellant filed a claim for a schedule award (Form CA-7).

3

Docket No. 17-0382 (issued June 26, 2018). On February 22, 2016 OWCP terminated appellant’s compensation,
effective that date, finding that she no longer had any employment-related residuals or disability. By decision dated
November 2, 2016, OWCP’s hearing representative affirmed the February 22, 2016 termination decision. On
December 12, 2016 appellant, through counsel, appealed to the Board. By decision dated June 26, 2018, the Board
affirmed OWCP’s decision dated November 2, 2016.
4

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

5

Id. at 509.

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On April 7, 2017 OWCP referred appellant’s case, along with a statement of accepted facts
(SOAF), and the case record to its district medical adviser (DMA). In an April 30, 2017 report,
Dr. Jovito Estaris, an occupational medicine specialist serving as a DMA, reviewed the record and
noted appellant’s history of injury and treatment. He determined that appellant had one percent
permanent impairment of the LLE. The DMA noted that the MRI scan of the left ankle revealed
slight edema in the fibulotalar ligament and in the posterior tibiotalar ligament compatible with a
mild strain. Using Table 16-2, Foot and Ankle Regional Grid, page 501 of the A.M.A., Guides
for a strain, all other tendons, appellant’s CDX was a Class 1 impairment, with a default value of
two for mild motion deficits. Pursuant to Table 16-6, page 516 of the A.M.A., Guides, the DMA
noted GMFH was zero, no antalgic gait. He noted GMPE of one for mild limitation of ROM,
pursuant to the A.M.A., Guides, Table 16-7, page 517. The DMA noted that grade modifier for
GMCS was not used as clinical studies were used in proper classification of the DBI grid. He
applied the net adjustment formula and found a net adjustment of -1, “class B,” for an impairment
rating of one percent of the LLE. The DMA noted that his calculation differed from Dr. Macht
because he used the diagnosis ankle sprain “involving posterior tibial, anterior tibial, Achilles, or
peroneal;” however, the MRI scan showed the involved tendons were posterior fibulotalar and
tibiotalar ligaments which were classified as “all other tendons.”
In a letter dated May 3, 2017, OWCP requested that Dr. Macht review the DMA’s
conclusion and provide a new opinion on permanent impairment.
On May 19, 2017 Dr. Macht reviewed the April 30, 2017 report of the DMA, and asserted
that he stood by his initial impairment evaluation of 10 percent permanent impairment of the LLE
as a result of her accepted left ankle injury. He noted discrepancies in his ROM measurements
and that of the DMA, but asserted that his measurements were performed in accordance with the
A.M.A., Guides. Dr. Macht also indicated that when a diagnosis does not quite fit the DBI model,
the A.M.A., Guides instruct to use the closest corollary diagnosis.
On June 5, 2017 OWCP requested the DMA review the supplemental report from
Dr. Macht dated May 19, 2017, and address the discrepancies between the two impairment ratings.
On June 30, 2017 the DMA advised that since there was inconsistency in the examination
between two providers he recommended having an “independent medical examination” by a
Board-certified orthopedic surgeon who routinely performed impairment ratings using both the
DBI and ROM method according to the A.M.A., Guides.
On July 6, 2017 OWCP determined that a conflict existed between the opinion of
Dr. Macht, appellant’s treating physician who opined that appellant had 10 percent permanent
impairment, and Dr. Estaris, the DMA, who opined that appellant had 1 percent LLE impairment.
It referred appellant for an impartial medical examination with Dr. Mark A. Peterson, a Boardcertified orthopedic surgeon, selected as the impartial medical examiner (IME).
In an October 18, 2017 report, Dr. Peterson noted appellant’s history of injury, treatment,
and examination findings. He reported normal examination findings of the lower extremities.
Dr. Peterson advised that appellant reached MMI and was ready to return to work in July 2011.
He found no objective physical finding to explain her continued complaints of pain and inability
to ambulate without discomfort. Dr. Peterson noted that the EMG and nerve conduction velocity
(NCV) studies of the lower extremities were normal. An MRI scan of the foot and ankle were
consistent with a mild ankle sprain. Dr. Peterson further noted that the physical examination was
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unremarkable. He advised that pursuant to the A.M.A., Guides, appellant was a CDX for ankle
strain with a class zero for no significant abnormal findings of muscle or tendon injury.
On March 19, 2018 OWCP requested clarification from Dr. Peterson noting that he did not
address or resolve the conflict of medical opinion between Dr. Macht and Dr. Estaris.
In an undated supplemental report, Dr. Peterson noted that at the time of his examination
he found no significant objective findings to provide a permanent impairment rating. He noted
that after reviewing the A.M.A., Guides he concurred with the DMA’s impairment rating.
Dr. Peterson noted a CDX of Class 1, grade C, default value of 1 for mild motion deficits.
Applying the modifiers Dr. Peterson noted GMPE of zero, GMFH of zero and there was no GMCS.
Applying the net adjustment formula, he found a net adjustment of -2 or one percent permanent
impairment of the LLE. Dr. Peterson disagreed with the findings of Dr. Macht’s March 1, 2017
report and noted that he found mild problems as her ankle motion was symmetric and without
limitation.
By decision dated May 22, 2018, OWCP granted appellant a schedule award for one
percent permanent impairment of the LLE. The award was for 2.88 weeks to run during the period
from March 1 to 21, 2017.
On May 30, 2018 counsel requested a telephonic hearing before an OWCP hearing
representative.
By decision dated October 3, 2018, OWCP’s hearing representative set aside the decision
dated May 22, 2018 and remanded the case for further medical development. It found that OWCP
improperly declared a conflict of opinion between Dr. Macht who assigned 10 percent impairment
of the LLE, and Dr. Estaris who assigned 1 percent impairment of the LLE. The hearing
representative indicated that Dr. Estaris’ addendum report of June 30, 2017, did not offer a rating,
rather, he recommended additional medical development with a Board-certified specialist who
performed rating examinations in accordance with the A.M.A., Guides. Based on this it was
improper to declare a conflict, instead OWCP should have referred appellant for a second opinion
examination. The hearing representative indicated that the opinion of Dr. Peterson could not be
afforded the special weight of the medical evidence as an IME, but that of a second opinion
physician. It further found that the opinion of Dr. Peterson, in his reports of October 18, 2017 and
April 23, 2018, were in direct conflict with Dr. Macht’s reports of March 1 and 19, 2017.
Therefore, the hearing representative instructed that the case be remanded to OWCP for referral
of appellant to an IME for resolution of the conflict in medical opinion evidence in accordance
with 5 U.S.C. § 8123(a).
On October 11, 2018 OWCP referred appellant to an IME. In a November 15, 2018 report,
Dr. Gary W. Pushkin, a Board-certified orthopedist serving as an IME, discussed appellant’s
history of injury and reviewed her medical records. Upon examination of appellant’s LLE,
Dr. Pushkin noted no visible deformity or defect, the skin was warm and dry, there was no atrophy,
there was tenderness along the medial and lateral malleoli and anteromedial and anterolateral joint
lines, and negative anterior drawer test. He found the ROM measurements were unreliable,
dorsiflexion measured -5 degrees to +5 degrees, plantar flexion was 25 to 30 degrees, eversion
was zero, and inversion was 5 degrees. Dr. Pushkin noted that appellant walked with an antalgic
gait, which was not consistent when walking forward and backward. He diagnosed ankle and foot
sprain post-traumatic, resolved and symptom magnification. Upon review of the medical records,
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Dr. Pushkin opined that appellant showed a lot of inconsistency in ROM measurements by several
providers and also demonstrated different gait patterns. Pursuant to the A.M.A., Guides, page 51718 he found her ROM measurements unreliable. Dr. Pushkin noted that according to Table 16-2,
page 501, appellant was a Class 1 impairment with a default grade of 1 percent. He noted a GMFH
of zero pursuant to Table 16-6 as her gait was inconsistent when walking forward and backward;
the GMPE of zero pursuant to Table 16-7 as her ROM measurements were inconsistent; and the
GMCS was one pursuant to Table 16-8 for mild pathology, bone bruises, and edema on the MRI
scan. Dr. Pushkin applied the net adjustment formula and found a net adjustment of -2, Class 1,
Grade A for an impairment rating of zero percent permanent impairment of the LLE.
By decision dated December 6, 2018, OWCP denied appellant’s claim for a schedule
award. It noted that the schedule award determination was based on the November 15, 2018 report
of Dr. Pushkin, the IME.
On December 11, 2018 counsel requested a telephonic oral hearing before an OWCP
hearing representative, which was held on April 17, 2019.
By decision dated July 1, 2019, an OWCP hearing representative affirmed the decision
dated December 6, 2018.
LEGAL PRECEDENT
The schedule award provisions of FECA,6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or 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 a 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, published in 2009.8 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).10 Under the sixth edition, the evaluator identifies the impairment CDX, which
6

Supra note 2.

7

20 C.F.R. § 10.404.

8

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.

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is then adjusted by GMFH, GMPE, and GMCS.11 The net adjustment formula is (GMFH - CDX)
+ (GMPE - CDX) + (GMCS - CDX).12 Evaluators are directed to provide reasons for their
impairment choices, including the choices of diagnoses from regional grids and calculations of
modifier scores.13
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.14 When there are opposing reports
of virtually equal weight and rationale, the case must be referred to an impartial medical specialist,
pursuant to section 8123(a) of FECA, to resolve the conflict in the medical evidence.15 Where a
case is referred to an IME for the purpose of resolving a conflict, the opinion of such specialist, if
sufficiently well rationalized and based on a proper factual and medical background, must be given
special weight.16
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
OWCP determined that a conflict in the medical opinion evidence existed between
Dr. Macht, a treating physician, and Dr. Estaris, the DMA, with regard to permanent impairment
of the LLE and referred appellant to Dr. Peterson, an IME. OWCP subsequently found that when
Dr. Peterson was selected as the IME to resolve the conflict in medical opinion, a conflict did not
exist in the medical opinion evidence. The referral to Dr. Peterson is therefore considered to be
for a second opinion evaluation.17 It properly referred appellant’s case to Dr. Pushkin pursuant to
5 U.S.C. § 8123(a) for an IME in order to resolve the conflict in medical opinion. In his
November 15, 2018 report, Dr. Pushkin reviewed appellant’s history of injury, the relevant
medical evidence, including appellant’s March 18, 2011 MRI scan of the left foot, and
September 6, 2011 EMG/NCV study, and provided physical examination findings. Upon
examination of appellant’s LLE, Dr. Pushkin noted no visible deformity or defect, the skin was
warm and dry, there was no atrophy, there was tenderness along the medial and lateral malleoli
and anteromedial and anterolateral joint lines, and negative anterior drawer test. He found the
11

Id. at 494-531.

12

Id. at 521.

13

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

14
5 U.S.C. § 8123(a). See R.C., Docket No. 18-0463 (issued February 7, 2020); see also G.B., Docket No. 16-0996
(issued September 14, 2016).
15

See M.R., Docket No. 19-0526 (issued July 24, 2019); C.R., Docket No. 18-1285 (issued February 12, 2019).

16

Id.

17
See S.M., Docket No. 19-0397 (issued August 7, 2019) (the Board found that at the time of the referral for an
IME there was no conflict in medical opinion evidence; therefore, the referral was for a second opinion examination);
see also Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (the Board found that, as there was no conflict in medical
opinion evidence, the report of the physician designated as the IME was not afforded the special weight of the
evidence, but instead considered for its own intrinsic value as he was a second opinion specialist).

6

ROM measurements unreliable and inconsistent and noted that she also demonstrated different
gait patterns. Dr. Pushkin diagnosed ankle and foot sprain post-traumatic, resolved and symptom
magnification. He noted that according to Table 16-2, page 501, appellant was a Class 1
impairment with a default grade C for 1 percent impairment. Dr. Pushkin noted a GMFH of zero
pursuant to Table 16-6 as her gait was inconsistent when walking forward and backward, the
GMPE of zero pursuant to Table 16-7 as her ROM measurements were inconsistent and she had
less than 1 centimeter of muscle atrophy, and the GMCS was one pursuant to Table 16-8 for mild
pathology, bone bruises, and edema. Dr. Pushkin applied the net adjustment formula and found
zero percent permanent impairment of the LLE.
As noted above, when a case is referred to an IME for the purpose of resolving the conflict,
the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.18 The Board finds that Dr. Pushkin’s November 15,
2018 report is entitled to special weight and established that appellant had no ratable impairment
of the LLE.19 Dr. Pushkin’s opinion was based on a proper factual and medical history, which he
reviewed, and on the proper tables and procedures in the A.M.A., Guides. He referenced the
A.M.A., Guides and explained his opinion as to why appellant had no ratable permanent
impairment of the LLE. Dr. Pushkin based his impairment rating on the medical evidence in the
record, correctly applied the A.M.A., Guides and provided medical rationale for his impairment
rating.20 As such, the Board finds that she has not established permanent impairment of her LLE
due to her accepted left ankle sprain and left foot sprain.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing a progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

18

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

19

D.S., Docket No. 18-0336 (issued May 29, 2019); T.C., Docket No. 17-1741 (issued October 9, 2018).

20

See D.B., Docket No. 17-0930 (issued July 11, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the July 1, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 5, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, MORGAN
PROCESSING & DISTRIBUTION CENTER,
New York, NY, Employer
__________________________________________
Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-574
Issued: January 24, 2014

Case Submitted on the Record

ORDER REMANDING CASE FOR RECONSTRUCTION
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On January 15, 2013 appellant’s attorney filed an appeal from Office of Workers’
Compensation Programs’ (OWCP) file number xxxxxx537. Counsel indicated that he was
appealing a November 15, 2012 merit decision of OWCP. The appeal was docketed as
No. 13-574. The Board, having duly considered the matter, concludes that the appeal docketed
as No. 13-574 must be remanded to OWCP.
On appeal, counsel explained that on August 20, 2012 he requested reconsideration of an
October 20, 2011 decision issued under the present claim, File No. xxxxxx537. However,
OWCP denied modification by issuing the November 15, 2012 decision under File
No. xxxxxx864, another of appellant’s claims. It did not include the November 15, 2012
decision in the case record under File No. xxxxxx537 now before the Board. Also, OWCP did
not double File No. xxxxxx864 with the present claim.1

1

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

The Board has performed a limited review of OWCP’s November 15, 2012 decision
under File No. xxxxxx864.2 The Board notes that both File No. xxxxxx864 and File No.
xxxxxx537 concern claims for the same parts of the body and contain the same or similar
medical evidence. However, the Board cannot adjudicate matters under File No. xxxxxx537
without jurisdiction over File No. xxxxxx864. Therefore, the Board directs that File No.
xxxxxx537 be returned to OWCP for doubling with File No. xxxxxx864 and any development
deemed necessary due to the doubling of the claim files, be followed by an appropriate merit
decision to preserve appellant’s appeal rights.
IT IS HEREBY ORDERED THAT File No. xxxxxx537 is returned to the Office of
Workers’ Compensation Programs for doubling with File No. xxxxxx864 and any additional
development consistent with this decision and order.
Issued: January 24, 2014
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

2

Although the Board has access to File No. xxxxxx864, as noted, the claims have not been combined.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, MILWAUKEE
VEHICLE MAINTENANCE FACILITY,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 21-1206
Issued: March 24, 2022

Case Submitted on the Record

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

JURISDICTION
On August 4, 2021 appellant, through counsel, filed a timely appeal from a June 22, 2021
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish medical conditions
causally related to the accepted July 9, 2019 employment incident.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On July 10, 2019 appellant, then a 56-year-old body repairman, filed a traumatic injury
claim (Form CA-1) alleging that on July 9, 2019 he sustained a pinched nerve in his left shoulder
when he lifted a Long Life Vehicle (LLV) door while in the performance of duty. He stopped
work on that date and returned to modified duty on July 10, 2019.
In a July 12, 2019 duty status form report (Form CA-17), Dr. Cindy Catania, an osteopath
Board-certified in family medicine, noted a July 9, 2019 date of injury. She indicated clinical
findings of left shoulder impingement syndrome and left upper back muscle spasm.
In an October 17, 2019 development letter, OWCP informed appellant that it had reopened
his claim for reconsideration of the merits because he had filed a notice of recurrence (Form
CA-2a),4 and that his claim would now be formally adjudicated. It advised him of the deficiencies
of his claim and requested additional factual and medical evidence. OWCP afforded appellant 30
days to provide the necessary factual information and medical evidence.
In an October 23, 2019 note, Dr. Cameron Best, a Board-certified orthopedic surgeon,
advised that appellant was unable to work until his electromyography (EMG) study.
By decision dated November 27, 2019, OWCP denied appellant’s claim. It accepted that
the July 9, 2019 incident occurred as alleged and that left shoulder and cervical conditions had
been diagnosed, however, it denied his claim finding that he had failed to establish that his medical
conditions were causally related to the accepted employment incident.
Appellant subsequently submitted diagnostic testing reports. A July 12, 2019 left shoulder
magnetic resonance imaging (MRI) scan revealed focal cortical irregularity of the acromion. A
July 17, 2019 left shoulder x-ray examination report showed normal shoulder alignment and mild
acromioclavicular degenerative changes. An October 17, 2019 cervical spine MRI scan
demonstrated severe left foraminal stenosis at the C4-5 and C5-6 levels. An October 17, 2019 left
shoulder MRI scan revealed marked supraspinatus and infraspinatus tendinosis, multifoca l labral
tearing, moderate acromioclavicular (AC) joint degenerative change with ganglion cyst formation,
and mild teres minor atrophy.
3

Docket No. 20-1486 (issued March 16, 2021).

4

On October 10, 2019 appellant filed a recurrence claim for disability from work commencing October 9, 2019
due to his July 9, 2019 employment injury.

2

In reports dated July 9 and 12, 2019, Dr. Catania noted that appellant was reevaluated for
his injuries of left shoulder strain and left thoracic muscle spasm since July 8, 2019. She provided
examination findings and noted diagnosis of left shoulder impingement syndrome, left shoulder
muscle spasm, left shoulder acute pain, left shoulder strain, paresthesia and pain of the left
extremity, and peripheral fatigue.
In a July 17, 2019 report, Dr. Jonathan E. Campbell, a Board-certified orthopedic surgeon,
recounted appellant’s complaints of left shoulder pain and numbness. He conducted an
examination and diagnosed left forearm and hand numbness with possible ulnar neuritis.
In reports dated October 14 and 21, 2019, Dr. David K. DeDianous, Board-certified in
physical medicine and rehabilitation, recounted appellant’s symptoms of middle back and left
shoulder pain. He provided examination findings and diagnosed shoulder pain, left arm
paresthesia, tendinitis, and cervical pain and radiculopathy.
In a November 11, 2019 letter, Dr. R.J. Hammett, a chiropractor, indicated that he was
treating appellant for injuries sustained at work. Appellant submitted additional chiropractic
treatment notes dated October 29 through November 19, 2019.
On February 18, 2020 appellant requested reconsideration.
In a December 3, 2019 letter, Dr. Hammett discussed appellant’s examination findings and
noted that a cervical spine x-ray evaluation revealed loss of cervical lordosis, degenerative disc
spaces at C5-6 with osteophytic spurring, and flexion malposition at C5 and C6. He diagnosed
vertebral subluxation complexes of C1 and C5 with a loss of cervical lordosis, and cervical
degenerative changes. In an undated addendum letter, Dr. Hammett noted that the injury was
initially caused on July 9, 2019 when lifting an LLV door onto sawhorses and flipping them over.
By decision dated May 6, 2020, OWCP denied modification of November 27, 2019
decision.
Appellant, through counsel, appealed to the Board. By decision dated March 16, 2021, the
Board affirmed OWCP’s May 6, 2020 decision.5
On April 13, 2021 appellant, through counsel, requested reconsideration.6
In an undated addendum letter, Dr. Hammett indicated that he was clarifying his previous
October 20 and December 3, 2019 reports and letters. He noted that appellant first presented in
his office complaining of mid-back and neck pain radiating into his hands with numbness and
tingling in the radial nerve dermatome. Dr. Hammett opined that the injury was initially caused
5

Supra note 3.

6

Although counsel claimed to be filing a request for reconsideration from the Board’s March 16, 2021 decision,
OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject
matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R.
§ 501.6(d). Although the March 16, 2021 Board decision was the last merit decision, the May 6, 2020 OWCP decision
is the appropriate subject of possible modification by OWCP.

3

on July 9, 2019 when appellant lifted an LLV door at work. He recounted that appellant had
informed him that this particular job was heavy and awkward because of the weight and angles
that the doors have to be flipped.
By decision dated June 22, 2021, OWCP denied modification of the May 6, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 8 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 9 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. 10
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. 11
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. Second, the employee must submit evidence, in the
form of probative medical evidence, to establish that the employment incident caused a personal
injury.12
To establish causal relationship between the condition, as well as any attendan t disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence. 13 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

7

Supra note 2.

8

F.H., Docket No. 18-0869 (issued January 29, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
9

L.C., Docket No. 19-1301 (issued January 29, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
10

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
11

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

12

T.H., Docket No. 19-0599 (issued January 28, 2020); B.M., Docket No. 17-0796 (issued July 5, 2018); David
Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).
13

S.S., Docket No. 19-0688 (issued January 24, 2020); S.A., Docket No. 18-0399 (issued October 16, 2018); see
also Robert G. Morris, 48 ECAB 238 (1996).

4

by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee. 14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish medical
conditions causally related to the accepted July 9, 2019 employment incident.
Appellant submitted an addendum letter to the prior reports of Dr. Hammett, a chiropractor,
who indicated that he was treating appellant for complaints of mid-back and neck pain radiating
into his hands with numbness and tingling in the radial nerve dermatome. He opined that
appellant’s injury was initially caused on July 9, 2019 when he lifted an LLV door at work. Under
FECA, the term physician includes chiropractors only to the extent that their reimbursable services
are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.15 The Board finds that Dr. Hammett did treat appellant’s
subluxation as demonstrated by x-ray to exist and has treated it with manual manipulation.
Therefore, Dr. Hammet is considered a physician under FECA. 16 However, he has not provided a
rationalized medical opinion establishing causal relationship between the diagnosed subluxation
and the accepted July 9, 2019 employment incident. 17 Therefore, appellant has not met his burden
of proof.
On appeal, counsel argues that Dr. Hammett provided clarification of his opinion on causal
relationship and diagnosed subluxation based upon an x-ray scan. As explained above, however,
Dr. Hammett is not considered a physician as defined under FECA.
As the medical evidence of record is insufficient to establish causal relationship between
appellant’s medical conditions and the accepted July 9, 2019 employment incident, he has not met
his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

14

C.F., Docket No. 18-0791 (issued February 26, 2019); M.V., Docket No. 18-0884 (issued December 28, 2018);
I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).
15

Section 8101(2) of FECA provides that the term physician includes chiropractors only if the treatment consists
of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist. 5 U.S.C. § 8101(2).
See J.D., Docket No. 19-1953 (issued January 11, 2021); T.T., Docket No. 18-0838 (issued September 19, 2019);
Thomas W. Stevens, 50 ECAB 288 (1999).
16

See id. The Board notes that it did not properly characterize Dr. Hammett as a physician on prior appeal; however,
that was harmless error as he has not provided a rationalized medical opinion establishing causal relationship.
17

See supra note 13.

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish medical
conditions causally related to the accepted July 9, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Warwick, RI, Employer
__________________________________________

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

Docket No. 15-0865
Issued: October 6, 2015

Case Submitted on the Record

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

JURISDICTION
On March 9, 2015 appellant filed a timely appeal from a September 29, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The last merit decision of
record was OWCP’s April 4, 2012 decision. Because more than 180 days elapsed between the
last merit decision 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 to review the
merits of the claim.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for further
review of the merits.

1
2

5 U.S.C. § 8101 et seq.

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).

FACTUAL HISTORY
This case has previously been before the Board. On January 14, 1992 appellant, then a
49-year-old construction representative, sustained injuries to his neck and back when he slipped
on a wet dock at work. He stopped work on January 16, 1992 and did not return. Effective
August 9, 1992, he elected a disability retirement annuity from the Office of Personnel
Management (OPM). OWCP accepted the claim for cervical and lumbosacral sprains and paid
compensation benefits until the election of OPM benefits. On February 27, 2006 he had filed a
Form CA-7 claim for disability benefits retroactive to August 9, 2002. On January 5, 2007
appellant elected to receive wage-loss compensation from OWCP retroactive to August 9, 1992,
in lieu of OPM benefits. He asserted that his disability was due to his accepted condition. On
June 1, 2007 OWCP denied his claim for disability compensation due to insufficient medical
evidence. After a reconsideration request, OWCP conducted a merit review but denied the claim
on September 27, 2007. An appeal was filed to the Board. On May 13, 2008 the Board issued
an order remanding the case to OWCP for proper assemblage of the record and a de novo
decision as the case record was missing materials from August 4, 1995 through
December 14, 2004.3 After determining no records were missing, OWCP reissued its decision
on December 1, 2008 denying wage-loss compensation beginning August 9, 1992.
By decision dated October 22, 2009, the Board affirmed the December 1, 2008 decision,
finding that appellant had not met his burden of proof to establish wage-loss compensation
beginning August 9, 1992.4 Appellant requested reconsideration. In decisions dated January 14,
2011 and April 4, 2012, OWCP reviewed the case on its merits and denied modification of the
wage-loss compensation determination. On October 26, 2012 appellant appealed the April 4,
2012 decision to the Board. On December 20, 2012 the Board issued an order dismissing appeal
as it was untimely filed and the Board lacked jurisdiction to review the appeal.5
On March 29, 2013 appellant requested reconsideration of the April 4, 2012 decision.
The request was postmarked on March 29, 2013 and received by OWCP on April 5, 2013. By
decision dated May 8, 2013, OWCP denied appellant’s request as untimely filed and failing to
establish clear evidence of error. Appellant disagreed and again requested reconsideration. He
continued to request that OWCP reconsider his claim. On August 14, 2013 OWCP denied
appellant’s request for reconsideration as it was untimely filed and failed to establish clear
evidence of error. Appellant appealed to the Board. By decision dated June 11, 2014, the Board
affirmed the May 8 and August 14, 2013 OWCP decisions.6 The facts of the case as set forth in
the Board’s prior decisions are incorporated herein by reference.
By letter dated June 18, 2014 received by OWCP on June 26, 2014, appellant requested
reconsideration. Evidence received in support of this reconsideration request included a May 22,
2013 letter from the U.S. Postal Service apologizing for delayed delivery of his reconsideration
3

Docket No. 08-278 (issued May 13, 2008).

4

Docket No. 09-519 (issued October 22, 2009).

5

Docket No. 13-169 (issued December 20, 2012).

6

Docket No. 14-132 (issued June 11, 2014).

2

request mailed on March 29, 2013, and confirming delivery of that letter to an OWCP mailroom
in London, Kentucky, on April 4, 2013. Also submitted were a printout showing that appellant’s
certified mail item was delivered on April 4, 2013 in London, Kentucky, and a copy of
correspondence between appellant and the office of Senator Elizabeth Warren.
By decision dated September 29, 2014, OWCP denied appellant’s request for
reconsideration. It found that, while he had established that the March 29, 2013 request for
reconsideration was delivered to OWCP mailroom on April 4, 2013, it was not received by
OWCP’s district office until April 5, 2013, and was therefore untimely filed. OWCP further
found that appellant did not submit any relevant and pertinent new evidence with his most recent
reconsideration request that shows that OWCP erroneously applied or interpreted a specific point
of law, or advances a relevant legal argument not previously considered.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”7
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that
an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.8
OWCP procedures require a review of the file to determine whether the application for
reconsideration was received within one year of a merit decision. The one-year period begins on
the date of the original decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues. This includes any hearing or review
of the written record decision, any denial of modification following a reconsideration, any merit
decision by the Board, and any merit decision following action by the Board, but does not
include prerecoupment hearing decisions.9 Timeliness is determined by the document receipt
date of the reconsideration request (the received date in the Integrated Federal Employees

7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.607(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4.b (October 2011).

3

Compensation System (iFECS)). If the request for reconsideration has a document received date
greater than one year, the request must be considered untimely.10
OWCP will consider an untimely application 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.11
The term clear evidence of error is intended to represent a difficult standard.12 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.13
ANALYSIS
The most recent decision reviewing the merits of appellant’s case was OWCP’s April 4,
2012 decision. As the appeal rights attached to that decision explained, appellant had one
calendar year from the date of that decision or until April 4, 2013, to ensure receipt by OWCP of
any reconsideration request.
OWCP received appellant’s June 18, 2014 reconsideration request on June 26, 2014. As
the received date was more than one year beyond April 4, 2012, appellant’s request must be
considered untimely. The proper standard of review for an untimely reconsideration request is
the clear evidence of error standard.
In denying appellant’s reconsideration request, OWCP found the request untimely but did
not review the request under the clear evidence of error standard. Rather it applied the standard
of review for timely requests for reconsideration.14 As OWCP applied the wrong standard of
review to the untimely request for reconsideration, the Board will set aside OWCP’s
September 29, 2014 decision and remand the case for proper review under the clear evidence of
error standard as required by regulations.15
CONCLUSION
The Board finds that this case is not in posture for decision as OWCP applied the
improper standard of review.
10

Id. at Chapter 2.1602.4.b (October 2011).

11

20 C.F.R. § 10.607.

12

Supra note 10 at Chapter 2.1602.5.a (October 2011).

13

Id. at Chapter 2.1602.5.b.

14

Cf H.L., Docket No. 13-2077 (issued March 20, 2014) (the Board set aside and remanded the case on the
grounds appellant’s request was untimely and its generic decision failed to discuss or evaluate the particular
evidence and argument appellant presented to support her request).
15

See 20 C.F.R. § 10.607(b).

4

ORDER
IT IS HEREBY ORDERED THAT the September 29, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further review under
the clear evidence of error standard.
Issued: October 6, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATIONS & CUSTOMS
ENFORCEMENT, Pretoria, South Africa,
Employer
__________________________________________

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

Docket No. 11-1410
Issued: January 5, 2012

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 May 27, 2011 appellant filed a timely appeal from a December 9, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his claim. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a recurrence of a medical
condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 23, 2010 appellant, then a 29-year-old border patrol agent trainee, filed a claim
alleging that on October 31, 1988 he sustained an aggravation of a previously dislocated right
shoulder condition in the performance of duty. In October 1991, he advised OWCP that he had
partially dislocated his shoulder and required surgery. On November 20, 1991 OWCP accepted
a temporary aggravation of a right shoulder dislocation. It subsequently accepted a closed
dislocation of the right shoulder and joint derangement and, in January 1992, authorized surgery
to repair right shoulder instability.
On March 23, 2010 appellant filed a notice of recurrence of a medical condition on
July 1, 2009 due to the 1991 employment incident. He related that following his original injury
he had a mild problem with range of motion. Appellant began experiencing pain and numbness
of the arm and shoulder and a physician in South Africa told him that he needed surgery due to
the original injury.
On August 2, 2010 OWCP requested additional factual and medical information
regarding the alleged recurrence of disability, including a comprehensive medical report
addressing the causal relationship between his current condition and his original work injury.
In an undated response received on September 13, 2010, appellant related:
“I have not suffered any injury which caused me to miss work or be placed on
limited duty. Over the past year or so I have had clicking and a sensation of
looseness in my right arm. More recently, I experienced sensitivity and numbness
in the arm which prompted me to see an Orthopedic Doctor. The doctor’s
diagnosis is that the shoulder through normal everyday movement has
deteriorated to the point that I now need replacement surgery.”2
By decision dated December 9, 2010, OWCP denied appellant’s claim. It found that he
was alleging an occupational disease rather than a recurrence of disability. OWCP determined
that appellant had not submitted sufficient supporting factual or medical evidence to meet his
burden of proof.
On appeal, appellant noted that he experienced delays in obtaining medical evidence and
requested that his case be reopened.
LEGAL PRECEDENT
OWCP regulations define a recurrence of a medical condition as the documented need for
further medical treatment after release from treatment of the accepted condition when there is no

2

On October 27, 2010 appellant requested that OWCP defer a decision on his case until he returned to the United
States in February 2011.

2

work stoppage. Continued treatment for the original condition is not considered a renewed need
for medical care, nor is examination without treatment.3
OWCP’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instructions to return as needed or computed by the claims
examiner from the date of last examination), a claimant is responsible for submitting an
attending physician’s report which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.4
ANALYSIS
OWCP accepted that appellant sustained an employment-related aggravation of a right
shoulder dislocation, a closed right shoulder dislocation and joint derangement. Appellant filed a
notice of recurrence of a medical condition on July 1, 2009 causally related to his employment
injury. OWCP found that he was claiming an occupational disease rather than a recurrence of a
medical condition. It appears from appellant’s statement, however, that he is alleging that his
original medical condition worsened such that he requires additional medical treatment without
exposure to new work factors or a work stoppage. Consequently, he is alleging a recurrence of a
medical condition rather than an occupational disease.5
As the record contains no medical evidence since the 1990s, in order to establish a
recurrence of a medical condition appellant must submit a rationalized medical report explaining
the relationship between his current condition and his work injury.6 On August 2, 2010 OWCP
informed him of the type of evidence required to establish a recurrence; however, he did not
submit any medical evidence substantiating that he required medical treatment beginning July 1,
2009 due to the accepted work injury. Appellant has the burden of furnishing medical evidence
from a physician who, on the basis of a complete and accurate medical history, concludes that
the condition is causally related to the employment injury and supports that conclusion with
sound rationale.7 He did not submit the evidence required and thus failed to establish a
recurrence of a medical condition.
On appeal, appellant requested that his case be reopened and submitted additional
evidence. The Board has no jurisdiction to review new evidence on appeal.8 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 and 20 C.F.R. §§ 10.605 through 10.607.
3

20 C.F.R. § 10.5(y).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003).

5

An occupational disease is defined as a condition produced by the work environment over a period longer than a
single workday or shift. 20 C.F.R. § 10.5(q).
6

See supra note 4; J.F., 58 ECAB 124 (2006).

7

See Mary A. Ceglia, 55 ECAB 656 (2004).

8

See 20 C.F.R. § 501.2(c).

3

CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of a
medical condition.
ORDER
IT IS HEREBY ORDERED THAT the December 9, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed as modified to reflect that appellant has not
established a recurrence of a medical condition.
Issued: January 5, 2012
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 12-1663
Issued: January 17, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 28, 20121 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated February 2, 2012 denying modification
of a loss of wage-earning capacity decision. The Board also has jurisdiction over a nonmerit
decision dated July 23, 2012 denying reconsideration. 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 and nonmerits of this case.

1

Under the Board’s Rules of Procedure, the 180-day period for determining jurisdiction begins on the day
following the date of OWCP’s decision. 20 C.F.R. § 501.3(f)(2). As OWCP issued its merit decision on
February 2, 2012, the 180-day period began February 3, 2012. Since using the date the appeal was received by the
Clerk of the Board would result in the loss of appeal rights, the date of receipt, July 28, 2012, is considered the date
of filing. 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly denied modification of a 1999 wage-earning
capacity determination; and (2) whether OWCP properly refused to reopen appellant’s case for
further review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant contends that the loss of wage-earning capacity determination was
erroneous. He also contended that the Board’s finding that OWCP’s determination of pay rate
required clarification established that the original determination was erroneous.
FACTUAL HISTORY
This case has previously been before the Board. The Board issued a decision and order
on May 15, 2003 affirming OWCP decisions of October 29, 2001 and January 28, 2002.3 The
Board found that OWCP properly reduced appellant’s wage-loss benefits effective August 15,
1999,4 based on its determination that the selected position of cashier II represented his wageearning capacity. The Board also found that appellant failed to meet his burden of proof to
establish a recurrence of disability on or after August 28, 2000 causally related to his accepted
March 15, 1982 employment injury.5 In a December 12, 2004 decision, the Board affirmed
OWCP’s April 12, 2004 decision finding that modification of the loss of wage-earning capacity
was not warranted.6 The Board found that further development was required as to the wage rate
used to determine appellant’s wage-earning capacity. In a decision dated October 24, 2006, the
Board affirmed an April 5, 2005 OWCP decision regarding his pay rate.7 The Board found that
OWCP properly denied appellant’s request for merit review and affirmed OWCP’s June 2 and
September 15, 2005 nonmerit decisions. On July 30, 2007 the Board issued an order granting
the Director’s petition for reconsideration for correction and denying appellant’s petition for
reconsideration.8 The Board modified footnote 7 to delete inaccurate language. In a May 4,
2010 decision, the Board found that OWCP applied an erroneous legal standard to appellant’s
request for modification of his July 16, 1999 loss of wage-earning capacity determination.9 The
Board set aside OWCP’s nonmerit decisions dated March 8, April 17 and August 6, 2008 and
March 11, 2009 and remanded the case to adjudicate the claim under the correct legal standard.
In a July 19, 2011 decision, the Board affirmed an August 2, 2010 OWCP decision which found

3

Docket No. 02-2265 (issued May 15, 2003).

4

OWCP issued its initial decision reducing the rate of appellant’s compensation benefits based on his wageearning capacity as a cashier II, effective August 15, 1999 on July 16, 1999.
5

On March 15, 1982 appellant, then a molder, injured his right hand in the performance of duty. OWCP accepted
the claim for fracture of the fifth right metacarpal and authorized nerve entrapment surgery.
6

Docket No. 04-1438 (issued December 14, 2004).

7

Docket No. 06-40 (issued October 24, 2006).

8

Id., order granting Director’s petition for recon. for correction and denying appellant’s petition for recon.
Docket No. 06-40 (issued July 30, 2007).
9

Docket Nos. 09-1046 & 09-1294 (issued May 4, 2010).

2

that modification of the loss of wage-earning capacity determination was not warranted.10 On
October 26, 2011 the Board denied appellant’s request for reconsideration. Appellant contended
that the constructed position was unsuitable for him. The Board rejected his argument as it
found that all of his arguments had been addressed in the July 19, 2011 decision. The facts and
circumstances of the case up to that point are set forth in the Board’s prior decisions and are
incorporated herein by reference.11
On November 27, 2011 appellant requested that OWCP modify the July 16, 1999 loss of
wage-earning capacity determination. He contended that OWCP incorrectly identified physical
requirements for the position of cashier II as it required heavy lifting which he was unable to
perform.
By decision dated December 22, 2011, OWCP denied modification of the July 16, 1999
wage-earning capacity decision.
On December 28, 2011 appellant requested modification of the July 16, 1999 loss of
wage-earning capacity determination. He again contended that the physical requirements of the
selected position were outside his work restrictions. Appellant argued that the physical
requirements were actually very heavy and not light or sedentary as found by OWCP.
By decision dated February 2, 2012, OWCP denied modification of the July 16, 1999 loss
of wage-earning capacity determination.
On July 12, 2012 appellant requested modification of the July 16, 1999 loss of wageearning capacity determination. He argued both OWCP and the Board relied upon an incorrect
designation of the physical requirements of the cashier II position as sedentary. Appellant
contended that the cashier II position was outside of his work restrictions and thus OWCP erred
when it reduced his wages based on this position.
By decision dated July 23, 2012, OWCP denied appellant’s request for a merit review.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.12 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.13 OWCP’s procedures provide that, if a formal loss
of wage-earning capacity decision has been issued, the rating should be left in place unless the
10

Docket No. 10-2099 (issued July 19, 2011).

11

The Board notes that appellant filed an appeal of a May 15, 2003 decision on July 29, 2003 and the Board
docketed the appeal as No. 03-1923 and No. 03-2022. On October 6, 2003 the Board granted appellant’s request to
dismiss his appeal in Docket No. 03-1923. The Board also issued an order dismissing Docket No. 03-2022 as a
duplicate appeal of Docket No. 03-1923.
12

D.M., 59 ECAB 164 (2007); Harley Sims, Jr., 56 ECAB 320 (2005).

13

Katherine T. Kreger, 55 ECAB 633 (2004); see Robert H. Merritt, 11 ECAB 64 (1959).

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claimant requests resumption of compensation for total wage loss.14 In this instance the claims
examiner will need to evaluate the request according to the customary criteria for modifying a
formal loss of wage-earning capacity.15
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.16 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.17
ANALYSIS -- ISSUE 1
Appellant contends on appeal that the original loss of wage-earning capacity
determination was erroneous. The Board finds that he did not submit sufficient evidence to show
that OWCP’s original determination with regard to his wage-earning capacity should be
modified. In a July 16, 1999 decision, OWCP determined that appellant had the wage-earning
capacity to perform the position of cashier II and reduced his wage-loss benefits accordingly.
This determination was reviewed by the Board in a prior appeal and affirmed. The Board had
also affirmed the determination that there had been a conflict in the medical evidence in a prior
appeal.
Appellant has the burden of proof to show that a modification of his loss of wage-earning
capacity is warranted but has not submitted sufficient medical evidence to establish a material
change in the nature and extent of his injury-related conditions. OWCP therefore properly
denied modification of the July 16, 1999 loss of wage-earning capacity determination.18
In his request for reconsideration, appellant reiterated the same argument previously
raised before OWCP and in prior Board appeals. As noted above, the Board on May 15, 2003
affirmed OWCP’s determination that the position of cashier II was medically suitable and the
duties of the position were not repetitive. The Board also affirmed there was a conflict in the
medical opinion evidence and that OWCP properly referred appellant for an impartial medical
examination to resolve the conflict. Appellant did not submit sufficient evidence to show he was
retrained or otherwise vocationally rehabilitated; nor did he allege that there had been a material
change in the nature and extent of his injury-related condition. As such, the only remaining basis
for modification is for him to demonstrate that the original determination was erroneous, which
he has not done.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Mary E. Marshall, 56 ECAB 420 (2005).
15

Federal (FECA) Procedure Manual, id. See Harley Sims, Jr., 56 ECAB 320 (2005).

16

See D.M., supra note 11; Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000);
Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).
17

Id.; Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

18

T.M., Docket No. 08-975 (issued February 6, 2009); Elbert Hicks, 55 ECAB 151 (2003).

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On appeal, appellant submitted arguments addressing the Dictionary of Occupational
Titles. He contends that the loss of wage-earning capacity determination was erroneous as the
physical requirement for the position were not sedentary. Appellant also contends that the
Board’s finding that OWCP’s determination of pay rate required clarification established that the
original determination was erroneous. The Board has addressed both of these issues in previous
decisions. In a decision dated October 24, 2006, the Board on the third appeal affirmed an
April 5, 2005 OWCP decision regarding appellant’s pay rate and that modification of the
July 16, 1999 loss of wage-earning capacity was not established. The Board in its prior appeal
on July 19, 2011 rejected appellant’s arguments regarding the physical requirements and the
constructed position being unsuitable.
Appellant may request modification of the loss of wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,19
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.20 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.21 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.22
ANALYSIS -- ISSUE 2
Appellant’s July 12, 2012 requests for reconsideration neither showed that OWCP
erroneously applied or interpreted a specific point of law, nor advanced a relevant legal argument
not previously considered. He reiterated his contention that the job was not sedentary as found
by OWCP. These contentions were addressed and rejected by the Board in an October 24, 2006
decision. Appellant has presented no evidence supporting his contention. Thus, he has not
advanced a relevant legal argument not previously considered. The Board finds, therefore, that
appellant has failed to satisfy either of the first two requirements under section 10.606(b)(3).

19

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
20

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
21

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).
22

20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

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Appellant also failed to satisfy the third requirement listed in section 10.606(b). He did
not submit any relevant and pertinent new evidence not previously considered by OWCP.
The Board finds that OWCP properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(3) and thus properly denied his request for reconsideration.
CONCLUSION
The Board finds that appellant has not established that a modification of the loss of wageearning capacity is warranted. The Board further finds that it properly denied reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 23 and February 2, 2012 are affirmed.
Issued: January 17, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, ANNISTON, AL, Employer
__________________________________________

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

Docket No. 08-2206
Issued: August 3, 2009

Case Submitted on the Record

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

JURISDICTION
On August 6, 2008 appellant filed a timely appeal from a merit decision dated May 27,
2008 of the Office of Workers’ Compensation Programs denying her occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
this case.
ISSUE
This issue is whether appellant sustained a respiratory condition causally related to her
federal employment.
FACTUAL HISTORY
On September 5, 1984 appellant, then 39 years old, filed an occupational disease claim
alleging that in May 1984 she was exposed to an unknown substance while working for the
employing establishment on inventory which resulted in asthmatic bronchitis.1 In a June 6, 1984
1

The Board notes that the actual claim form does not appear to be in the record.

note, Dr. Thomas J. Brothers, an attending physician, advised that appellant needed a permanent
change in her environment due to severe asthmatic bronchitis.
In a June 19, 1984 report, Dr. James E. West, a Board-certified surgeon, noted that
appellant was hospitalized on June 11, 1984 with a diagnosis of asthmatic bronchitis. Appellant
reported that about a month prior, she went into a room at work and breathed some sort of
material that she was unable to identify. Since that time she had difficulty breathing and was
treated on an outpatient basis. Dr. West noted that appellant was improving.
In a June 20, 1984 report, Dr. A.F. Toole, a Board-certified otolaryngologist, noted that
appellant was hospitalized with asthmatic bronchitis. Appellant told him that she went into a
building that had been closed, as part of her employment, and experienced coughing. Dr. Toole
noted that she complained of coughing to the point where she had trouble getting her breath.
Appellant’s x-rays were within normal limits and her nose, throat and nasopharynx were clear.
Dr. Toole doubted that a polyp had formed, stating that it was “more likely” appellant may be
expectorating sputum and catching some thick tenatious sputum on the vocal cords and giving
her intermittent larygospasm.
In a June 22, 1984 discharge summary, Dr. Brothers noted that appellant was moderately
dyspneic and acutely ill. He stated that her place of employment seemed to be very smoky and
hazardous to her current symptoms. Dr. Brothers diagnosed allergic bronchitis and chronic
obstructive pulmonary disease.
In a July 12, 1984 report, Dr. Durwood Bradley, a professor of pulmonary medicine at
the University of Alabama, advised that appellant was admitted to the pulmonary department on
July 5, 1984 and was discharged on July 10, 1984. Appellant had a two-month history of cough,
shortness of breath and choking. Dr. Bradley stated that no serious cause of airway disease was
found. He noted that whatever appellant had it was a benign and self-limited disorder.
Dr. Bradley noted that appellant’s condition was “probably a tracheolaryngobronchitis due to an
airway irritant and should clear completely with time.”
A July 13, 1984 discharge summary from Dr. Susan J. Pruitt noted that appellant was
admitted to pulmonary services with a diagnosis of laryngotrachobronchitis, had a bronchoscopy
and was discharged in good condition. Appellant complained that she smelled chlorine fumes
while at her employment and since that time, experienced a dry cough, hoarsness and burning
sensations. Dr. Pruitt noted that no clear diagnostic explanation was found for appellant’s
symptoms.
In an August 14, 1984 report, Dr. Jeffrey W. Hawkins, a Board-certified internist in
pulmonary disease, stated that appellant informed him that she was in good health until May 22,
1984 when she entered a warehouse at the employing establishment and detected a strong odor.
Appellant developed a burning sensation in her throat with nonproductive cough and hoarseness.
Following this episode, the cough and hoarseness persisted with associated episodes of
paroxymal coughing that seemed to be precipitated by eating, lying down and exertion.
Dr. Hawkins reviewed her treatment and diagnosed laryngotracheobroncitis. He opined that
appellant’s prolonged episode of laryngotracheobronchitis was most likely precipitated by a
chemical irritation received while working in the enclosed atmosphere of a storage warehouse.

2

In an August 22, 1984 report, Norman D. Butler, an industrial hygienist, noted that at the
request of the safety director, he conducted an inspection on July 19, 1984 in order to determine
if any chemicals were stored or used within the building. Upon entering the building, he
detected a light musty odor and noticed the internal temperature of the area seemed to be in the
80 to 90 degree range. Subsequent to the inspection, Mr. Butler was contacted by appellant who
stated that on May 22, 1984, she spent two to three hours in the building inventorying materials.
Appellant noted that after 30 to 40 minutes she noted a chlorine odor but that a colleague,
Kaye Poe, supply clerk/investigator, did not smell it. When questioned, Ms. Poe informed
Mr. Butler that she remembered appellant saying that she smelled chlorine but she did not smell
chlorine or experience any eye or respiratory irritation. Mr. Butler stated that appellant’s
allegations that her medical problems were caused by her presence in Building 38 could not be
substantiated. In a September 25, 1984 follow-up report, Mr. Butler noted that appellant
attributed her asthmatic problems to creosote treated ammunition boxes in the warehouse on
May 22, 1984. As a result, atmospheric monitoring within the warehouse was conducted on
September 11, 1984. He noted that a determination was made to test for pentachlorophenol
(PCP), a chemical used for preservation of ammunition boxes and pallets. The test showed that
airborne concentrations of PCP within the warehouse were below detectable limits. During the
survey, it was noted that a cylinder believed to be compressed nitrogen during the previous
survey was actually compressed inert helium. Mr. Butler stated that the testing demonstrated
that none of the stored items were hazardous.
In an October 30, 1984 report, Dr. Hawkins advised that appellant was in good health
until May 22, 1984 when she developed the onset of a persistent laryngitis and bronchitis. He
noted that she was convinced that the initiation of cough and laryngeal irritation occurred from
exposure to a strong chemical odor while working in a storage warehouse. Dr. Hawkins
concurred, noting the timing of her illness. He opined that appellant’s exposure resulted in an
allergic response to a chemical irritation and precipitated her prolonged illness.
No further action was taken on the claim.
In a January 30, 2007 letter to appellant’s congressman, Dr. Brothers forwarded his
medical reports regarding injury to appellant’s lungs sustained while working at the employing
establishment in 1984. He stated, “It is my medical opinion that [appellant] did sustain some
degree of permanent respiratory damage which took place while she was taking inventory in a
warehouse. Appellant has had considerable respiratory problems since that accident that she did
not have prior to that.”
By letter dated November 29, 2007, appellant’s congressman asked that her case be
reopened. He noted that appellant explained that she entered a locked warehouse and
inventoried the contents for about two hours, began to smell something and then began to cough.
Appellant told her congressman there was a cylinder of hydrogen and unmarked cylinders and
stacks of wooden pallets that had been treated with creosote. After this one day in the
warehouse, she had to change jobs and in 2001 stopped work altogether.
On February 6, 2008 appellant filed a request for reconsideration. She noted that she
could not walk from one desk to another without gasping for breath and that she missed many
days from work. Appellant requested oxygen to breathe and was placed on large doses of

3

steroids that caused her to gain weight. She alleged that she was forced to retire on disability in
January 2001 due the deterioration in her lungs. Appellant also noted that she had open heart
surgery in December 2005.
In an April 23, 2008 letter, the employing establishment controverted the claim, noting
that the medical evidence was insufficient to establish the causal relationship of her pulmonary
condition to specific factors of her employment.
By decision dated May 27, 2008, the Office found that the medical evidence was not
sufficient to support that any exposure to fumes on May 22, 1984 caused or precipitated
appellant’s pulmonary condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,3
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.4
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 to establish 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.5
As part of her burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.6 The weight of
medical evidence is manifested and the medical rationale expressed in support of the physician’s
opinion.7 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
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

Ruth Seuell, 48 ECAB 188 (1996); Elaine Pendleton, supra note 4.

6

Supra note 4; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

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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.8
ANALYSIS
The Board finds that the medical evidence submitted by appellant is not sufficient to
establish that she sustained a pulmonary condition causally related to her federal employment.
Appellant alleged that on May 22, 1984, while working on inventory at the employing
establishment she detected an odor like chlorine and developed a cough and hoarseness.
However, there is insufficient rationalized medical opinion evidence to relate appellant’s
condition to any exposure on that date. The record reveals that she was treated in June 1984 for
asthmatic bronchitis. Drs. West and Toole, in reports in June 1984, noted that appellant reported
that she breathed an unidentified substance while at work one-month prior. However, the
physicians did not address whether this caused appellant’s asthmatic bronchitis. In a June 22,
1984 discharge summary, Dr. Brothers noted only that appellant’s place of employment was
“smoky.” The Board notes that appellant never made any allegations that her illness was related
to smoke at the employing establishment. On July 12, 1984 Dr. Bradley indicated that he found
no serious cause of airway disease. He did not relate appellant’s condition to any exposure to
chemicals at the employing establishment on May 22, 1984. Dr. Pruitt noted that appellant
complained of chlorine fumes while at the employing establishment, but concluded that there
was no clear diagnostic explanation for her symptoms. On August 14, 1984 Dr. Hawkins
reported that appellant’s prolonged episode of laryngotracheobronchitis was “most likely”
precipitated by a chemical irritation received while working in an enclosed atmosphere of a
storage warehouse; however, he did not provide a rationalized explanation supporting this
conclusion. Moreover, his opinion was stated in speculative language as he stated that
appellant’s condition was “most likely” precipitated by exposure. His opinion is of diminished
weight.9
In an October 30, 1984 report, Dr. Hawkins noted that appellant’s condition was caused
by the exposure during her federal employment based on the fact that she was in good health
until May 22, 1984 when she developed the onset of persistent laryngitis and bronchitis. The
Board notes that an award of compensation may not be based on surmise, conjecture or
speculation. Neither the fact that appellant’s claimed condition became apparent during a period
of employment nor her belief that her condition was aggravated by her employment is sufficient
to establish causal relationship.10 Dr Hawkins did not address the chemical substance or agent
believed to be an irritation in this case. He did not provide a basis for finding causal relation
other than noting a temporal relation. Dr. Brother’s opinion that appellant sustained permanent
respiratory damage while taking inventory in the warehouse because she experienced respiratory
problems after May 1984 is not persuasive. The Board notes that his opinion was rendered over
8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
9

See Edna M. Davis, 42 ECAB 728 (1991); Gaetan F. Valenza, 39 ECAB 1349 (1988).

10

Walter D. Morehead, 31 ECAB 188 (1986).

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20 years after the alleged exposure. Appellant has not submitted persuasive rationalized medical
opinion evidence relating her respiratory condition to the alleged workplace exposure on
May 22, 1984. She has failed to meet her burden of proof to establish an occupational disease
claim.11
CONCLUSION
The Board finds that appellant has not established that she sustained a respiratory
condition on May 22, 1984, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 27, 2008 is affirmed.
Issued: August 3, 2009
Washington, DC

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

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

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

11

Supra note 4.

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