United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Plainfield, NJ, Employer
)
___________________________________________ )
J.B., Appellant

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2009
Issued: April 7, 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 July 14, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated May 19, 2008 which denied modification of a
prior decision denying his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
developed a right knee condition while in the performance of duty.
FACTUAL HISTORY
On November 29, 2006 appellant, then a 56-year-old letter carrier, filed an occupational
disease claim alleging that he developed osteoarthritis of the right knee while walking, lifting,
casing and standing at work. He became aware of his condition on September 27, 2006.
Appellant stopped work on September 22, 2006 and did not return.

In support of his claim, appellant submitted a statement and indicated that he worked as a
letter carrier since 1974 and his job required him to carry a loaded satchel and walk
approximately seven miles per day. He asserted that his job duties caused the diagnosed
osteoarthritis of the right knee and indicated that he now required a total knee replacement.
Appellant submitted a return to work certificate from Dr. Kevin A. McNeil, a Board-certified
family practitioner, dated July 25, 2006, who noted that appellant was under his care until
September 25, 2006 and could return to work on October 7, 2006.
The employing establishment submitted a letter of controversion dated December 4, 2006
which noted that appellant’s return to work slip was not signed by a physician and appellant
failed to note how long he was treated for his knee condition.
In a letter dated December 18, 2006, the Office advised appellant of the type of factual
and medical evidence needed to establish his claim, particularly requesting that appellant submit
a physician’s reasoned opinion addressing the relationship of his claimed condition and specific
employment factors.
Appellant submitted a statement dated January 16, 2007 and advised that he sought
treatment from Dr. Robert T. Goldman, a Board-certified orthopedist, and would be submitting a
report shortly.
In a decision dated January 23, 2007, the Office denied appellant’s claim on the grounds
that the evidence was insufficient to establish that he sustained an injury as alleged.
On February 6, 2007 appellant requested reconsideration. He indicated that he had no
history of knee trauma but had experienced right knee pain for a couple of years. Appellant
submitted a job description for a mail carrier and a detailed list of his treating doctors and
medical history. He submitted a magnetic resonance imaging (MRI) scan of the right knee dated
October 26, 2005 which revealed degenerative joint disease, no definite meniscal tear, possibly a
tear of the anterior cruciate ligament, a small joint effusion and subchondral edema.
Also submitted was an undated report from Dr. McNeil who diagnosed osteoarthritis of
the left knee. Dr. McNeil noted that appellant was totally disabled. In a November 18, 2006
report, he noted first treating appellant on September 26, 2005 for osteoarthritis of the knees.
Dr. McNeil diagnosed advanced osteoarthritis of the knees and opined that appellant was totally
disabled since September 22, 2006. An August 25, 2006 report from Dr. Stuart J. Fischer, a
Board-certified orthopedist, noted knee pain left greater than right. It further noted a lifting
incident two weeks prior and felt his knee “go.” Dr. Fischer noted full range of motion of the
left knee and equivocal tenderness medially and anterior medially. He indicated that x-rays of
the left knee revealed minimal degenerative changes. Dr. Fischer diagnosed meniscus tear on the
right and synovitis of the left knee.
A September 27, 2006 report from Dr. Eric Mirsky, a Board-certified orthopedist, noted
treating appellant for chronic right knee pain that recently worsened. Dr. Mirsky noted appellant
was a letter carrier and had been totally disabled from work. He noted findings upon x-ray of
advanced, tricompartmental degenerative changes consistent with osteoarthritis, medial joint
space narrowing, osteophyte formation and varus deformity. Dr. Mirsky diagnosed advanced

2

osteoarthritis of the left knee. Also submitted was a January 29, 2007 report from Dr. Robert T.
Goldman, a Board-certified orthopedist, who treated appellant on October 17 and November 21,
2006 for a right knee injury that had been present for a couple of years but had become
progressively worse. Dr. Goldman diagnosed severe right knee osteoarthritis. He reviewed
appellant’s job description and noted that he was a letter carrier for 32 years and carried 35
pounds of mail in his mailbag up to six hours per day, for seven miles per day. Dr. Goldman
noted that appellant’s repetitive use of the knee joint over years of employment, mechanical
stress on the joint and his age contributed to his cartilage degeneration. He opined that
appellant’s right knee osteoarthritis was accelerated by and aggravated by his job as a letter
carrier. Dr. Goldman recommended a total knee replacement.
In a decision dated May 11, 2007, the Office denied modification of the January 23, 2007
decision. It noted that the factual and medical evidence was insufficient to support that
appellant’s claimed right knee osteoarthritis was causally related to the duties of his employment.
On February 19, 2008 appellant requested reconsideration. He submitted a statement and
reiterated his allegation that his knee pain began in 2000 and was caused by his duties as a letter
carrier which included extended walking and carrying a mailbag. Appellant indicated that he
underwent a total right knee replacement in February 2007. He submitted an MRI scan of the
right knee dated June 13, 2000 which revealed prominent bone bruises of the medial tibial
plateau and medial femoral condyle and Grade 2 sprain of the medial collateral ligament.
A January 14, 2008 report from Dr. David Weiss, an osteopath, noted that appellant was
a letter carrier since 1974 and was required to walk for extended periods of time and has
experienced right knee pain since 2000. Dr. Weiss noted examination of the right knee revealed
a well-healed surgical scar, limited range of motion, tenderness over the medial joint time,
patellofemoral compression produces crepitus and marked crepitus over the medial joint
compartment. He diagnosed cumulative and repetitive trauma disorder of the right knee,
aggravation of preexisting quiescent degenerative joint disease of the right knee, chondromalacia
patella to the right knee and status post right total knee replacement. Dr. Weiss opined that the
work-related injury sustained due to the duties of employment was the competent producing
factor for appellant’s subjective and objective complaints. He determined that appellant had 50
percent impairment of the right leg for a right total knee replacement with fair results and
reached maximum medical improvement on January 14, 2008.
Appellant also submitted a March 28, 2008 report from Dr. Goldman who noted first
treating appellant on October 17, 2006 for bilateral knee pain, and noted performing arthroscopic
surgery on the left knee on November 17, 2006. Dr. Goldman diagnosed torn medial meniscus
and chondromalacia of the medial femoral condyle. He opined that appellant’s job as a letter
carrier required him to put a tremendous amount of stress on his knees and he felt that this would
increase his need for a knee replacement in the future. Dr. Goldman noted performing a total
right knee replacement on February 7, 2007 and advised that appellant was progressing well
postoperatively.
In a decision dated May 19, 2008, the Office denied modification of the prior decision.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that the injury was
sustained in the performance of duty as alleged, and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. 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.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.2
ANALYSIS
Appellant alleged that he developed osteoarthritis of the right knee while performing his
work duties as a letter carrier. In the instant case, it is not disputed that his duties as a letter
carrier included prolonged standing and walking, bending, lifting and carrying a mailbag while
performing his work duties.
The Office denied appellant’s claim for compensation on the grounds that the medical
evidence was not sufficient to establish that appellant’s medical condition of osteoarthritis of the
right knee was causally related to his employment. However, the Board notes that the medical
evidence submitted by appellant generally supports that he developed osteoarthritis of the right
knee due to prolonged standing and walking and carrying a mailbag. Specifically, Dr. Goldman
noted in a report dated January 29, 2007, that he treated appellant on October 17 and
November 21, 2006 for right knee pain, which was present for a couple of years but has become
progressively worse. He noted that x-rays of the right knee revealed osteoarthritis and diagnosed
1

Gary J. Watling, 52 ECAB 357 (2001).

2

Solomon Polen, 51 ECAB 341 (2000).

4

severe osteoarthritis of the right knee. Dr. Goldman reviewed appellant’s job description and
noted that he was a letter carrier for 32 years and carried approximately 35 pounds of mail in a
mailbag up to six hours per day. He noted that appellant’s repetitive use of the knee joint over
years of employment, mechanical stress on the joint and his age were all contributing factors for
his cartilage degeneration. Dr. Goldman opined that appellant’s osteoarthritis of the right knee
was accelerated and aggravated by his employment as a letter carrier and recommended a total
knee replacement. In a report dated March 28, 2008, he opined that appellant’s job as a letter
carrier required him to put a tremendous amount of stress on his knees which would increase his
need for a knee replacement in the future. Also submitted was a report from Dr. Weiss dated
January 14, 2008, who noted appellant was a letter carrier since 1974 and was required to walk
for extended periods of time and has experienced right knee pain since 2000. Dr. Weiss
diagnosed cumulative and repetitive trauma disorder of the right knee, aggravation of preexisting
quiescent degenerative joint disease of the right knee, chondromalacia patella of the right knee
and status post right total knee replacement. He opined that appellant’s knee injury was the
result of performing the duties of his employment and was the competent producing factor for
appellant’s subjective and objective complaints.
Although these physician’s opinions are not sufficiently rationalized to carry appellant’s
burden of proof in establishing his claim, they stand uncontroverted in the record and are
sufficient to require further development of the case by the Office.3 Proceedings under the Act
are not adversary in nature nor is the Office a disinterested arbiter. While the claimant has the
burden to establish entitlement to compensation, the Office shares responsibility in the
development of the evidence. It has the obligation to see that justice is done.4 In view of the
noted medical evidence, the Office should have referred the matter to an appropriate medical
specialist to determine whether appellant may have developed osteoarthritis of the right knee as a
result of his employment duties.
Therefore, the Board finds that the case must be remanded to the Office for preparation of
a statement of accepted facts concerning appellant’s working conditions and referral of the
matter to an appropriate medical specialist, consistent with Office procedures, to determine
whether appellant may have developed osteoarthritis of the right knee as a result of performing
his employment duties. Following this, and any other further development as deemed necessary,
the Office shall issue an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

3

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

4

Jimmy A. Hammons, 51 ECAB 219 (1999); Marco A. Padilla, 51 ECAB 202 (1999); John W. Butler, 39 ECAB
852 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the May 19, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
in accordance with this decision of the Board.
Issued: April 7, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Bay Pines, FL, Employer
__________________________________________

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

Docket No. 11-435
Issued: September 16, 2011

Case Submitted on the Record

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

JURISDICTION
On December 14, 2010 appellant filed a timely appeal from an October 21, 2010
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) finding that he
abandoned his request for a hearing. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit
decision by the Office. The last merit decision of record was OWCP’s June 4, 2010 decision.
Because more than 180 days elapsed between the last merit decision to the filing of this appeal
on December 14, 2010, the Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant abandoned his request for an oral hearing before OWCP’s
hearing representative.
FACTUAL HISTORY
On April 17, 2010 appellant, then a 62-year-old training instructor, filed a traumatic
injury claim (Form CA-1) alleging that on February 1, 1995 he sustained a superficial phlebitis
when he stomped on a shovel. He stated that the pain went away but returned around
August 1995. Appellant first received medical care on February 1, 1996, notified his supervisor
on April 1, 2006 and was last exposed to the condition alleged to have caused his injury on
April 6, 2010.
By letter dated April 23, 2010, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and asked that he respond to the provided questions within 30 days.
By decision dated June 4, 2010, OWCP denied appellant’s claim finding that the
evidence did not establish that the incident occurred as alleged.
On June 16, 2010 appellant requested an oral hearing by telephone before OWCP’s
hearing representative.
By letter dated August 18, 2010, OWCP notified appellant that his hearing would be held
on October 6, 2010 at 11:00 a.m. eastern time. It provided him with a toll free number to call at
that time to be connected to the hearing representative and court reporter.
In a September 10, 2010 telephone call note, OWCP’s claims examiner reported that
appellant had called to report that he had returned to work on September 8, 2010. The claims
examiner informed him that the hearing was being held on October 6, 2010 and advised him to
refer to his hearing notice.
By decision dated October 21, 2010, OWCP’s hearing representative found that appellant
had abandoned his request for an oral hearing. The hearing representative noted that appellant
received written notice 30 days in advance of the hearing but failed to participate. The hearing
representative also found no evidence that appellant contacted OWCP either prior to or
subsequent to the scheduled hearing to explain his failure to appear.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides the right to a hearing before OWCP’s hearing
representative:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is

2

entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”3
Chapter 2.1601.6.e(1) of OWCP’s procedure manual explains when an employee is
considered to have abandoned his hearing request:
“A hearing can be considered abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not
requested a postponement; the claimant has failed to appear at a scheduled
hearing; and the claimant has failed to provide any notification for such failure
within 10 days of the scheduled date of the hearing.
“Under these circumstances, H&R [Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the DO [district Office].”4
ANALYSIS
Following OWCP’s June 4, 2010 decision denying his claim for compensation, appellant
requested an oral hearing before OWCP’s hearing representative. On August 18, 2010 it notified
appellant that his telephone hearing was scheduled for October 6, 2010 at 11:00 a.m. eastern
time. The letter was sent to appellant’s address of record.5 It provided him with a toll free
number and pass code to call in at the time of the hearing. Appellant did not request a
postponement, failed to call-in at the scheduled hearing, and failed to provide any notification for
such failure within 10 days of the scheduled date of the hearing. As all three conditions for
abandonment are met, the Board finds that appellant abandoned his request for an oral hearing.
The Board will therefore affirm the hearing representative’s October 21, 2010 decision.
CONCLUSION
The Board finds that appellant abandoned his request for an oral hearing before OWCP’s
hearing representative on October 6, 2010.

3

5 U.S.C. § 8124(b)(1).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6.e(1) (January 1999).
5

See Joseph R. Giallanza, 55 ECAB 186 (2003).

3

ORDER
IT IS HEREBY ORDERED THAT the October 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2011
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
AIR COMBAT COMMAND, NELLIS AIR
FORCE BASE, NV, Employer
__________________________________________

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

Docket No. 18-1393
Issued: February 12, 2019

Case Submitted on the Record

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

JURISDICTION
On July 9, 2018 appellant filed a timely appeal from a January 16, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated December 23, 2016, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of the case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On November 10, 2016 appellant, then a 55-year-old substance abuse counseling
specialist, filed an occupational disease claim (Form CA-2) alleging that she sustained an
employment-related aggravation of post-traumatic stress disorder (PTSD), anxiety, and
depression. She asserted that she first became aware of her claimed conditions and their
relationship to her federal employment on November 15, 2013. Appellant was terminated from
the employing establishment, effective December 13, 2013.
Appellant submitted May 6 and December 13, 2013 notification of personnel action forms
(Standard Form 50-B) showing her pay as a substance abuse counseling specialist, and core
personnel documents from 2012 which generally detailed the duties and standards of the position.
In a November 21, 2016 development letter, OWCP requested that appellant submit
additional evidence in support of her claim, including a physician’s opinion supported by a medical
explanation regarding the cause of her claimed emotional condition. It requested that she complete
and return an attached questionnaire which posed various questions regarding the employmentrelated incidents and conditions which she believed caused or aggravated her claimed condition.
OWCP afforded appellant 30 days to respond.3
In a December 1, 2016 letter, the employing establishment challenged appellant’s claim by
asserting that she filed the claim in an untimely manner and failed to submit adequate supporting
evidence.
By decision dated December 23, 2016, OWCP denied appellant’s claim for an
employment-related emotional condition because she failed to establish fact of injury. It found
that she did not establish compensable employment factors. OWCP indicated that appellant failed
to provide specific details describing the time, date, place, and nature of the implicated
employment-related events/conditions. In addition, she failed to provide documenting evidence,
such as witness statements, in support of her claim.
On December 27, 2017 appellant requested reconsideration of OWCP’s December 23,
2016 decision. In a December 22, 2017 letter, she indicated that she was submitting a packet of
documents in support of her claim.
Appellant submitted an undated statement in which she recounted the incidents and
conditions at work which she believed caused or aggravated her diagnosed emotional conditions.
She indicated that on May 6, 2013 she started working as a substance abuse counseling specialist,
a position which involved implementing the Air Force Alcohol and Drug Abuse Prevention and
3
Appellant contacted OWCP by telephone on December 21, 2016 and advised that she would not be able to submit
additional evidence within 30 days of November 21, 2016.

2

Treatment (ADAPT) program. Appellant noted that she advised management during the hiring
process that she had previously been diagnosed with PTSD, but that it failed to offer support when
her PTSD symptoms accelerated. She alleged that she encountered “general hostility” from the
ADAPT team members, noting that they were not friendly and would not provide training without
prompting. Appellant claimed that she was subjected to unstable leadership in that she had seven
different program managers during the seven months she worked at the employing establishment.
Appellant alleged that there was a three-month delay in providing her with credentials to
see patients and to access the computer system, a circumstance which she believed adversely
affected her ability to perform her job. She claimed that management failed to address her work
overload problems, forced her to work overtime in contradiction of her medical work restrictions,
and improperly handled pay and leave matters. Appellant indicated that in November 2013 she
became anxious when she learned that the ADAPT program manager had been arrested for causing
physical injury to his infant daughter.4 She asserted that supervisors had been very cruel to her
and unfairly scolded her for work matters such as her perceived inadequacies in using the
computer. Appellant claimed that she faced hostile reactions from management during a
November 15, 2013 meeting after she asked for support in performing her work.
Appellant asserted that management failed to adequately protect her after she was placed
in serious danger by a patient she was counseling. She claimed that, during a problem solving
meeting on November 18, 2013, management “shamelessly humiliated” her regarding her personal
safety concerns. Appellant alleged that she was intimidated by face-to-face meetings with
managers who unfairly criticized her work performance. She claimed she was wrongly denied
union representation at an adversarial meeting with supervisors and that management ignored
communications from her union representative. Appellant asserted that she was improperly
removed from clinical practice duties in November 2013 and was unfairly terminated from the
employing establishment in December 2013.
Appellant submitted a number of documents in support of her reconsideration request,
including e-mails sent to appellant by managers who discussed corrective action/training for lapses
in her work performance and as well as memoranda in which managers detailed disciplinary
actions taken against her.5 Most of these documents were produced in November and
December 2013 and primarily discussed appellant’s problems with logging in scheduled
counseling sessions, completing time card records, maintaining appropriate boundaries with
patients, and reporting perceived threats to her safety.
In a December 21, 2017 report, Dr. Joseph Hasler, an attending clinical psychologist,
reported that appellant’s work environment had triggered her PTSD symptoms by recreating many

Appellant asserted that this manager told her that he wished to harm three coworkers and that he responded, “I
don’t think so,” when she asked whether she was in danger.
4

5
The record contains a November 25, 2013 memorandum removing appellant from clinical practice duties and a
December 5, 2013 memorandum terminating her from the employing establishment effective December 13, 2013.

3

dynamics from her family life.6 Appellant discussed various problems she had at work with her
managers and a patient that she counseled. Dr. Hasler reported examination findings and
diagnosed complex PTSD with accompanying depression and anxiety. He generally indicated that
appellant’s job aggravated her psychological symptoms.
By decision dated January 16, 2018, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that
appellant submitted documentation in support of her reconsideration request, including an injury
statement and copies of memoranda/e-mails, but found that this evidence failed to demonstrate
clear evidence of error in the December 23, 2016 decision denying her emotional condition claim.
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 or her own motion or on application.
The Secretary, in accordance with the facts found on review, may end, decrease or increase the
compensation awarded, or 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, section 10.607(a) of the implementing
regulations provide that a request for reconsideration must be received within one year of the date
of its decision for which review is sought.8 Timeliness is determined by the document receipt date
of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS).9 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.10
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.11 If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.12

6
Appellant also submitted an undated statement in which she discussed aspects from her personal life which had
caused her stress, including verbal and physical abuse since early childhood by her parents, and a debilitating motor
vehicle accident which occurred when she was 35 years old.
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) (February 2016).

10

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

11

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

12
M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 9 at Chapter
2.1602.5 (February 2016) (the term clear evidence of error is intended to represent a difficult standard).

4

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue that was decided by OWCP. The evidence must be positive, precise, and explicit and must
be manifest on its face that OWCP committed an error.13 Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.14
The Board notes that clear evidence of error is intended to represent a difficult standard.15
The claimant must present evidence which on its face shows that OWCP made an error (for
example, proof that a schedule award was miscalculated). Evidence such as a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development, is not clear evidence of error.16 The
Board makes an independent determination of whether a claimant has demonstrated clear evidence
of error on the part of OWCP.17
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. An application for reconsideration must be received within one year
of the date of OWCP’s decision for which review is sought.18 As appellant’s request for
reconsideration was not received by OWCP until December 27, 2017, more than one year after the
issuance of its December 23, 2016 merit decision, it was untimely filed. Consequently, she must
demonstrate clear evidence of error by OWCP in its December 23, 2016 decision.
The Board further finds that appellant has not demonstrated clear evidence of error on the
part of OWCP in its December 23, 2016 decision.

13

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

14

Robert G. Burns, 57 ECAB 657 (2006).

15

R.K., Docket No. 16-0355 (issued June 27, 2016).

16

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 9 at Chapter 2.1602.5(a) (February 2016).

17

D.S., Docket No. 17-0407 (issued May 24, 2017).

18

See supra note 8.

5

Appellant failed to submit the type of positive, precise, and explicit evidence which
manifests on its face that OWCP committed an error in its December 23, 2016 decision.19 The
evidence and argument submitted did not raise a substantial question concerning the correctness
of OWCP’s decision.20 The Board notes that OWCP denied appellant’s claim on a factual basis,
i.e., the failure to establish any compensable employment factors. Appellant submitted a statement
in which she discussed the incidents and conditions at work which she believed caused or
aggravated her diagnosed emotional conditions. She asserted that management mishandled
numerous aspects of her work through its failure to address her concerns about work overload,
training, pay/leave matters, union representation, and her personal safety with respect to a manager
and a patient she counseled. Appellant asserted that she was unfairly criticized and scolded for
her work performance and was subjected to improper disciplinary actions, including her
termination in December 2013.
The Board notes, however, that appellant did not explain how this argument raised a
substantial question as to the correctness of OWCP’s December 23, 2016 decision. Appellant
submitted a number of documents, in support of her reconsideration request, including e-mails sent
to appellant by managers who discussed corrective action/training for lapses in her work
performance as well as memoranda in which managers detailed disciplinary actions taken against
her. However, the Board has reviewed these documents and none of them are sufficient to establish
an employment factor or otherwise show clear evidence of error in OWCP’s December 23, 2016
decision.
Appellant submitted a December 21, 2017 report in which Dr. Hasler, an attending clinical
psychologist, noted that appellant reported that her work environment had triggered her PTSD
symptoms. Dr. Hasler diagnosed complex PTSD with accompanying depression and anxiety, and
he generally indicated that appellant’s job aggravated her psychological symptoms. The Board
notes, however, that the submission of this report does not establish clear evidence of error in
OWCP’s December 23, 2016 decision. As previously noted, the underlying issue of this case is
not medical in nature. Rather it is factual in nature because appellant’s emotional condition claim
was denied on December 23, 2016 due to her failure to establish any compensable employment
factors. Even if employment factors were established and an evaluation of the medical evidence
was undertaken, Dr. Hasler’s December 21, 2017 report would not tend to raise a substantial
question concerning the correctness of OWCP’s December 23, 2016 decision.21
The Board finds that appellant’s request for reconsideration does not show on its face that
OWCP committed error when it found in its December 23, 2016 decision that appellant failed to

19

See supra note 13.

20

See supra notes 14.

21

See supra notes 18 and 19 regarding the consideration of medical evidence in an emotional condition claim.

6

establish an employment-related emotional condition.22 As noted, clear evidence of error is
intended to represent a difficult standard.23
For these reasons, OWCP properly determined that appellant did not demonstrate clear
evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2019
Washington, DC

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

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

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

22

See S.F., Docket No. 09-0270 (issued August 26, 2009).

23

See supra note 11.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
AUDIE L. MURPHY MEMORIAL HOSPITAL,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 07-1301
Issued: October 1, 2007

Case Submitted on the Record

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

JURISDICTION
On April 16, 2007 appellant filed an appeal of a January 26, 2007 decision of the Office
of Workers’ Compensation Programs denying her occupational disease claim and a March 30,
2007 decision denying her request for a hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant established that she sustained bilateral elbow
tendinitis in the performance of duty; and (2) whether the Office properly denied appellant’s
request for a hearing.
FACTUAL HISTORY
On October 17, 2006 appellant, then a 49-year-old employee health nurse, filed an
occupational disease claim (Form CA-2) asserting that she sustained bilateral elbow tendinitis on
or before October 10, 2006. She attributed her condition to repetitive upper extremity motion

while administering injections and performing computer data entry. Appellant did not stop
work.
In an October 27, 2006 letter, the Office advised appellant of the additional medical and
factual evidence needed to establish her claim. The Office emphasized the need to submit a
rationalized report from her attending physician explaining how and why the identified work
factors would cause the claimed bilateral elbow tendinitis.
In a November 7, 2006 letter, an employing establishment nursing supervisor confirmed
that appellant performed “repetitive motions giving injections, typing on computers, entering
data into database on a daily basis.” The supervisor stated that appellant reported bilateral elbow
tendinitis after the introduction of a new syringe. The employing establishment also provided a
position description.
In a November 12, 2006 letter, appellant described the repetitive upper extremity motions
she performed each day at work, including giving injections, taking vital signs, data entry and
making and answering telephone calls. She noted administering many additional injections in
October 2006 as part of a flu vaccine program.
In duty status reports dated October 17 to November 30, 2006, Dr. Alan E. Hibberd, an
attending Board-certified orthopedic surgeon, diagnosed medial and lateral epicondylitis. He
prohibited repetitive motion of the upper extremities. In a November 2, 2006 slip, Dr. Hibberd
stated that appellant was not to use her right arm at work for two weeks.
By decision dated January 26, 2007, the Office denied appellant’s claim on the grounds
that causal relationship was not established. The Office accepted that the identified employment
factors occurred as alleged. The Office found, however, that appellant submitted insufficient
rationalized medical evidence explaining how and why those factors would cause the claimed
condition.
In a letter postmarked February 27, 2007, appellant requested an oral hearing.
By decision dated March 30, 2007, the Office denied appellant’s request for a hearing on
the grounds that it was untimely filed. The Office found that appellant’s request for a hearing
was postmarked on February 27, 2007, more than 30 days after issuance of the Office’s
January 26, 2007 decision. The Office additionally denied appellant’s request for a hearing on
the grounds that the issues involved could be addressed equally well by requesting
reconsideration and submitting new evidence establishing that she sustained the claimed
condition in the performance of duty.1

1

Appellant submitted new evidence accompanying her request for appeal. The Board may not consider new
evidence for the first time on appeal that was not before the Office at the time it issued the final decision in the case.
20 C.F.R. § 501.2(c).

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.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 establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medial certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS -- ISSUE 1
Appellant alleged that she developed bilateral elbow tendinitis due to repetitive motion
administering injections and performing computer data entry. The Office accepted that appellant
performed such duties, but denied her claim on the grounds that the medical evidence was not
sufficient to establish that these work factors caused or aggravated any medical condition.
In support of her claim, appellant submitted reports from Dr. Hibberd, an attending
Board-certified orthopedic surgeon, who submitted form reports dated October 17 to 30, 2006
diagnosing medial and lateral epicondylitis and noting work restrictions. However, he did not
explain how or why repetitive upper extremity motion or any of the identified work factors
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Solomon Polen, 51 ECAB 341 (2000).

3

would cause or aggravate the diagnosed conditions. Dr. Hibberd did not describe how the
accepted work factors of administering injections, answering the telephone and performing
computer data entry would relate to appellant’s physical condition. His opinion is thus
insufficiently rationalized to meet appellant’s burden of proof in establishing causal
relationship.6
Therefore, appellant has not established that she sustained bilateral elbow tendinitis in the
performance of duty, as she submitted insufficient rationalized medical evidence to establish the
asserted causal relationship.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that “a claimant for compensation not satisfied
with a decision of the Secretary … is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”7
Sections 10.617 and 10.618 of the federal regulations implementing this section of the Act
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.8 The Office’s procedures, which require the Office
to exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of the Act and Board precedent.9
ANALYSIS -- ISSUE 2
The Office denied appellant’s claim by January 26, 2007 decision. Appellant’s letter
requesting an oral hearing was postmarked on February 27, 2007, more than 30 days after the
January 26, 2007 decision. Thus, the Office properly found that appellant’s request for a review
of the written record was not timely filed under section 8124(b)(1) of the Act and that she was
not entitled to an examination of the written record as a matter of right.
The Office then exercised its discretion and determined that appellant’s request for a
review of the written record could equally well be addressed by requesting reconsideration and
submitting additional evidence establishing that the claimed bilateral elbow tendinitis was
causally related to her federal employment. As the only limitation on the Office’s authority is
reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from known facts.10 The Board finds that there is no evidence of record that
the Office abused its discretion in denying appellant’s request. Thus, the Board finds that the
6

See Jimmie H. Duckett, 52 ECAB 332 (2001); Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

5 U.S.C. § 8124(b)(1).

8

20 C.F.R. §§ 10.616, 10.617.

9

Claudio Vasquez, 52 ECAB 496 (2002).

10

Daniel J. Perea, 42 ECAB 214 (1990).

4

Office’s denial of appellant’s request for an oral hearing was proper under the law and the facts
of this case.
CONCLUSION
The Board finds that appellant has not established that she sustained bilateral elbow
tendinitis in the performance of duty as alleged. The Board further finds that the Office properly
denied appellant’s request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 30 and January 26, 2007 are affirmed.
Issued: October 1, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOOD & CONSUMER SERVICE,
Parkersburg, WV, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-2074
Issued: February 9, 2015

Case Submitted on the Record

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

JURISDICTION
On September 30, 2014 appellant, through her attorney, filed a timely appeal from a
June 4, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish additional medical
conditions related to her March 2, 2010 work injury.
FACTUAL HISTORY
On March 30, 2010 appellant, then a 55-year-old program specialist, filed a traumatic
injury claim alleging that she sustained multiple injuries at work on March 2, 2010 when the
1

5 U.S.C. §§ 8101-8193.

vehicle in which she was a passenger was rear-ended by another vehicle.2 OWCP accepted her
claim for thoracic or lumbosacral neuritis or radiculitis, lumbar sprain, cervicalgia, lumbago, and
degeneration of lumbar or lumbosacral intervertebral disc. Appellant stopped work on
March 15, 2010 and was placed on continuation of pay.3
In a March 25, 2010 report, Dr. Juan L. Zamora, an attending Board-certified pathologist,
indicated that appellant presented complaining of lower back pain radiating to both legs, but
worse on the right with numbness and tingling. Appellant indicated to him that she was a front
seat passenger in a vehicle which was slowing down to make a turn when another vehicle hit her
vehicle from the back. Dr. Zamora stated that she developed pain in her lower back after the
accident and that she had been seen by Dr. David Bauer, a Board-certified orthopedic surgeon,
who prescribed her with Flexeril and an anti-inflammatory medication.4 He indicated that no
definitive diagnosis had been provided by Dr. Bauer. Upon physical examination, Dr. Zamora
indicated that there was paresthesia of the right L5 and S1 dermatomes. The deep reflexes of the
lower extremities were both equal and the range of motion was restricted and tender.
Dr. Zamora stated that there was muscle spasm and tenderness to palpation over the
paravertebral muscles. The Milgram’s test was positive and the straight leg rise test was also
positive for pain at 30 degrees on the right. Dr. Zamora diagnosed lumbar spine radiculitis,
lumbar spine strain and sprain, and lumbar spine, rule out disc disease.
In a May 21, 2010 report, Dr. Francisco Batlle, an attending Board-certified
neurosurgeon, stated that appellant reported being involved in a motor vehicle accident on
March 2, 2010 which caused acute onset of low back pain. Appellant described a “constant deep
ache” with “intermittent shooting pains” mainly into the right leg with associated numbness and
tingling in a nondermatomal distribution. Dr. Batlle indicated that he reviewed an April 8, 2010
magnetic resonance imaging (MRI) scan testing of appellant’s lumbar spine which demonstrated
a spondylolisthesis of L4 and L5, approximately two to three millimeters without change in
subluxation with flexion or extension views. There was a four-millimeter broad-based disc
protrusion with bilateral foraminal stenosis, right side greater than left, and a loss of lumbar
lordosis which was probably secondary to muscle spasms. Dr. Batlle further noted that the
testing did not show significant disc desiccation and that the disc space was maintained at L4-5.
He diagnosed lumbar disc displacement, lumbar radiculitis, lumbago, and lumbar myofascial
injury. Dr. Batlle indicated that appellant was not a surgical candidate.

2

Appellant was wearing a seat belt at the time of the accident, but her body was thrown forward by the impact.
The air bags in the vehicle did not inflate and there was some minor damage to the vehicle’s bumper due to the
accident.
3

It appears that appellant used leave to cover her absences after her continuation of pay expired. Beginning in
late April 2010, the employing establishment accommodated her with limited-duty work.
4

Dr. Bauer obtained x-rays on March 15, 2010 which showed normal alignment of the cervical spine, but loss of
the normal lordosis. Disc space height was slightly decreased with anterior osteophytes at C4 through C7. Lumbar
spine x-rays taken on that same date showed normal alignment with no evidence of spondylolysis or
spondylolisthesis. Lumbar disc space height was preserved and sacroiliac joints were normal, but moderate
degenerative changes were seen.

2

In an August 24, 2010 report, Dr. Zamora noted that appellant reported some
improvement in her lumbar spine pain but that the pain still radiated down her right leg. He
diagnosed lumbar spine spondylolisthesis, lumbar spine disc displacement, lumbar spine joint
hypertrophy, and lumbar spine radiculopathy.
In a February 8, 2011 report, Dr. Bernie L. McCaskill, an attending Board-certified
orthopedic surgeon, stated that appellant’s chief complaint was intermittent, diffuse lower back
pain with radiating diffuse right leg pain. Appellant also reported a history of chronic and
intermittent neck and upper back pain that was not affected by her March 2, 2010 vehicular
accident. Dr. McCaskill diagnosed spondylogenic lumbosacral spine pain associated with
chronic right lower extremity pain noting that the anatomic etiology was undetermined.
The findings on January 27, 2012 MRI scan testing of appellant’s lumbar spine showed a
two-millimeter right paracentral disc protrusion at the L5-S1 level which came in close
proximity to the right first sacral nerve root, and a two-millimeter broad-based central disc
protrusion at L4-5 with moderate facet arthropathy resulting in left L4-5 formaminal narrowing.
In an August 13, 2013 report, Dr. Deepak V. Chavda, an attending Board-certified
orthopedic surgeon, indicated that he was examining appellant for the first time and noted that
appellant reported that she had a motor vehicle accident back in 2010 when she was a passenger
in a vehicle that was rear-ended at a stop light by a vehicle traveling at a speed “greater than 5 to
10 miles per hour.” Appellant described an achy, stabbing pain that shot down her legs to her
feet with some numbness and tingling, right side more than left. Dr. Chavda indicated that, upon
physical examination of the cervical spine, she exhibited point tenderness to the cervical
paraspinal musculature and spasm bilaterally in both levator scapulae and trapezium, right more
than left. There was limitation on full flexion and extension of the cervical spine with a decrease
in left and right lateral side bending. Dr. Chavda indicated that examination of the lumbar spine
showed no point tenderness upon palpation of the lumbar paraspinous musculature. There was
positive straight leg raising on the right side at 60 degrees and negative straight leg raising at 90
degrees on the left side. Appellant had full dorsalis pedis and posterior tibial pulses bilaterally.
Dr. Chavda diagnosed chronic low back pain and lumbago with lumbosacral disc disorder,
lumbosacral sprain/strain, bilateral leg radiculopathy (right more than left), possible facet
arthropathy, bilateral sacroiliac joint pain (right more than left), cervicalgia with trapezium and
levator scapulae, and rule out herniated disc with radiculopathy.
Dr. Chavda submitted an amended notation on August 21, 2013 which stated, “Based on
my examination, medical records, and imaging studies, I request upgrade of [Department of
Labor] codes to include facet arthropathy (724.8), herniated disc cervical (722.0) with radicular
pain (723.4), bilateral [sacroiliac] syndrome (720.2), sacroiliitis (847.3), sprain of the sacrum
(824.6), and disorders of the sacrum (724.6).”
Appellant requested that the additional conditions related to her March 2, 2010 work
injury be accepted to include the conditions denoted in Dr. Chavda’s August 21, 2013 addendum
report.

3

On May 20, 2014 appellant’s case file was forwarded to Dr. Ronald Blum, a Boardcertified orthopedic surgeon and OWCP medical adviser, to determine if the new conditions
claimed by appellant were related to her March 2, 2010 work injury.
In a report dated May 22, 2014, Dr. Blum provided a summary of appellant’s factual and
medical history. He discussed the contents of Dr. Chavda’s August 13, 2013 report and his
August 21, 2013 addendum. Dr. Blum noted, “It is my opinion the information in the record
does no[t] support the requested upgrades including facet arthropathy, herniated cervical disc,
and cervical radicular pain. It is my opinion Dr. Chavda’s requested upgraded diagnoses are the
result of aging and not the result of the accepted work[-]related injury of March 2, 2010.”
Dr. Blum also stated, “It is also my opinion the requested upgrade to include sacral sprain is
medically reasonable. The remainder of requested sacral diagnoses are medically redundant.”
In a June 4, 2014 decision, OWCP expanded the accepted conditions in her case to
include the condition of “sacral sprain.”
In another June 4, 2010 decision, OWCP found that the other conditions for which
appellant had requested an upgrade had been disallowed. It discussed Dr. Chavda’s August 13,
2013 report and his August 21, 2013 addendum as well as the May 22, 2014 report of Dr. Blum.
OWCP stated:
“It is recommended that … facet arthropathy (724.8); herniated disc cervical
(722.0) with radicular pain (723.4); bilateral [sacroiliac] syndrome (720.2)
conditions be denied as the medical evidence of record does not support that these
conditions claimed are due to the March 2, 2012 work injury.
Your claim has been accepted for sacral sprain.”
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any specific condition for which compensation is claimed are causally related to the
employment injury.5 The medical evidence required to establish a causal relationship between a
specific condition and an employment injury is rationalized medical opinion evidence. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6

5

J.F., Docket No. 09-1061 (issued November 17, 2009).

6

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

4

OWCP procedure provides that an OWCP medical adviser’s primary medical functions
are evaluating medical evidence and interpreting physician reports. The claims examiner seeks
evaluation from the medical adviser in order to proceed with developing and weighing the
medical evidence. The claims examiner must always maintain responsibility for the case and
should not consult the medical adviser to adjudicate claims or determine benefit entitlement, as
these are primary functions of the claims examiner. The medical adviser has no authority to
decide the facts in a case, as this is a function of the claims examiner. However, the medical
adviser may state whether an accepted incident was competent to produce the injury claimed.7
ANALYSIS
On March 30, 2010 appellant filed a traumatic injury claim alleging that she sustained
multiple injuries at work on March 2, 2010 when the vehicle in which she was a passenger was
rear-ended by another vehicle. OWCP accepted her claim for thoracic or lumbosacral neuritis or
radiculitis, lumbar sprain, cervicalgia, lumbago, and degeneration of lumbar or lumbosacral
intervertebral disc.
Appellant received treatment for her medical condition by numerous attending
physicians. In an August 13, 2013 report, Dr. Chavda, an attending Board-certified orthopedic
surgeon, indicated that he was examining her for the first time and noted that she reported that
she had a motor vehicle accident back in 2010 when she was a passenger in a vehicle that was
rear-ended at a stop light by a vehicle traveling at a speed “greater than 5 to 10 miles per hour.”
He reported his findings on examination and diagnosed chronic low back pain and lumbago with
lumbosacral disc disorder, lumbosacral sprain/strain, bilateral leg radiculopathy (right more than
left), possible facet arthropathy, bilateral sacroiliac joint pain (right more than left), cervicalgia
with trapezium and levator scapulae, and rule out herniated disc with radiculopathy.
Dr. Chavda submitted an amended notation on August 21, 2013 which stated, “Based on
my examination, medical records, and imaging studies, I request upgrade of [Department of
Labor] codes to include facet arthropathy (724.8), herniated disc cervical (722.0) with radicular
pain (723.4), bilateral [sacroiliac] syndrome (720.2), sacroiliitis (847.3), sprain of the sacrum
(824.6), and disorders of the sacrum (724.6).”
Appellant requested that the conditions related to her March 2, 2010 work injury be
upgraded to include the conditions denoted in Dr. Chavda’s August 21, 2013 addendum report.
On May 22, 2014 Dr. Blum, a Board-certified orthopedic surgeon and OWCP medical adviser,
noted, “It is my opinion the information in the record does no support the requested upgrades
including facet arthropathy, herniated cervical disc, and cervical radicular pain. It is my opinion
Dr. Chavda’s requested upgraded diagnoses are the result of aging and not the result of the
accepted work-related injury of March 2, 2010.” Dr. Blum also stated, “It is also my opinion the
requested upgrade to include sacral sprain is medically reasonable. The remainder of requested
sacral diagnoses are medically redundant.” In a June 4, 2014 decision, OWCP denied
appellant’s request to expand the claim beyond the acceptance of a sacral sprain.
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.8(b), (c) (September 2010).

5

The Board finds that appellant has not met her burden of proof to establish that additional
medical conditions should be accepted due to her March 2, 2010 work injury. Appellant did not
establish that the conditions of facet arthropathy, herniated cervical disc with radicular pain,
bilateral sacroiliac syndrome, sacroiliitis, sprain of the sacrum, and disorders of the sacrum were
related to her March 2, 2010 work injury.
Although Dr. Chavda indicated in his August 21, 2013 addendum report that these
conditions should be accepted as related to the March 2, 2010 work injury, his opinion is of
limited probative value because he did not provide any medical rationale in support of this
opinion.8 He did not provide any explanation as to why these conditions were work related.
Dr. Chavda did not discuss the March 2, 2010 vehicular accident in any great detail or explain
how it could have been competent to cause these conditions. Such medical rationale is especially
necessary in the present case because a number of these medical conditions were not diagnosed
until a significant amount of time had passed since the March 2, 2010 vehicular accident.
Dr. Chavda first examined appellant more than three years after the March 2, 2010 accident and
his August 12 and 21, 2013 reports lack rationale, as he did not explain why these additional
medical conditions were not due to some nonwork-related cause, such as natural age-related
progression.
On appeal, counsel argued that OWCP wrongly denied appellant’s claim for additional
accepted work conditions by impermissibly finding that the weight of the medical evidence
rested with the medical adviser, Dr. Blum. He cited OWCP precedent which discussed the role
of OWCP medical advisers in evaluating medical evidence, including the limits of that role.9
The Board notes that counsel’s argument in this regard is misplaced because appellant’s claim
was not denied on the basis that the weight of the medical evidence rested with Dr. Blum, but
rather on the basis that she had not submitted sufficient rationalized medical evidence showing
that the claimed additional medical conditions were related to her March 2, 2010 work injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that medical
conditions should be accepted as related to her March 2, 2010 work injury in addition to those
already accepted.

8

See supra note 6.

9

See supra note 7.

6

ORDER
IT IS HEREBY ORDERED THAT the June 4, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 9, 2015
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, 99TH
MEDICAL GROUP, NELLIS AIR FORCE
BASE, NV, Employer
__________________________________________

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

Docket No. 21-1165
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On July 19, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 27, 2020, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 10, 2015 appellant, then a 63-year-old nurse educator, filed an occupational
disease claim (Form CA-2) alleging that she sustained an aggravation of her degenerative disc
disease due to constant sitting, staring at a computer screen, and inputting data while in the
performance of duty.
In a July 22, 2014 report, Dr. Shirley Rodriguez, an osteopath, recounted appellant’s
complaints of mid-thoracic, left-sided pain medial to the scapular area. She reported physical
examination findings of abnormal edema bilaterally in appellant’s extremities. Dr Rodriguez
assessed hypertension, osteoarthritis, gastroesophageal reflux disease, thoracic region strain, and
venous insufficiency.
In an October 28, 2014 report, Dr. Wesley Johnson, a Board-certified orthopedic surgeon,
recounted that appellant had worked for the employing establishment for a number of years and
complained of chronic pain issues in her neck and back. On physical examination, he noted
tenderness and mild swelling in her left wrist and some tenderness over the tuberosity of her right
shoulder. Dr. Johnson indicated that appellant had a chronic condition that may have been
exacerbated through her primary care.
Appellant resigned from the employing establishment, effective March 13, 2015.
In a letter dated May 12, 2015, the employing establishment controverted appellant’s claim
alleging that she had not submitted medical evidence of the alleged injury. It also noted that she
had previous fall injuries in 2013 and 2014.
In statements dated October 22, 2014 and May 2, 2015, appellant explained that she was
diagnosed with degenerative disc disease before she began working for the employing
establishment in 2012. She reported that she was exposed to constant sitting, staring at screens,
and inputting data at work and experienced painful, cramping hands, eye strain, headaches, and
back pain.
By decision dated June 16, 2015, OWCP denied appellant’s occupational disease claim,
finding that she had not established that her diagnosed thoracic and lumbar spine conditions were
causally related to the accepted factors of her federal employment.

3

Docket No. 18-1280 (issued March 12, 2019).

2

On June 29, 2015 appellant requested reconsideration.
In reports dated November 6, 2014 through April 20, 2015, Dr. Rodriguez provided
examination findings and assessed right shoulder pain, cervicalgia, degenerative joint disease,
osteoarthritis, thoracic strain, cervical strain, tenosynovitis of the thumb, and right shoulder
supraspinatus tendon tear.
In a June 12, 2015 attending physician’s report (Form CA-20), Dr. Rodriguez noted
appellant’s history of lumbar degenerative joint disease and diagnosed supraspinatus tendon tear
and degeneration of the cervical, thoracic and lumbar spine. She checked a box marked “Yes”
indicating that the diagnosed conditions were caused or aggravated by appellant’s employment
and explained that appellant worked at a desk job, which placed a strain on her spine, shoulders,
and wrist.
By decision dated September 25, 2015, OWCP denied modification of the June 16, 2015
decision.
On November 20, 2015 appellant requested reconsideration.
Appellant submitted reports dated July 16 through October 29, 2015 from Dr. John M.
Baldauf, a Board-certified orthopedic surgeon, who indicated that he treated her for complaints of
right shoulder pain after a slip and fall injury approximately seven months prior. On initial
examination of the right shoulder, Dr. Baldauf observed positive Neer and Hawkins signs and no
pain or swelling. He diagnosed shoulder impingement syndrome, bilateral shoulder tendinitis, and
bilateral shoulder joint pain.
By decision dated February 9, 2016, OWCP denied modification of the September 25,
2015 decision.
On March 21, 2016 appellant requested reconsideration.
In a May 11, 2016 statement, appellant indicated that she continued to be in pain on a level
of 7 to 10 on most days. She alleged that it was common for a person with mild-to-moderate
degenerative joint disease that was previously not problematic to experience a major exacerbation
of her condition from a sedentary job and a hard fall onto cement.
By decision dated June 17, 2016, OWCP denied modification of the February 9, 2016
decision.
On September 7, 2016 appellant requested reconsideration. She contended that she had
submitted all required medical documents from her physicians. Appellant asserted that her federal
employment temporarily aggravated her preexisting degenerative joint condition and that the
October 2014 fall made the aggravation permanent.
In a February 22, 2016 report, Dr. Archie C. Perry, a Board-certified orthopedic surgeon,
indicated that he treated appellant for complaints of low back pain radiating into her bilateral legs.
He discussed her diagnostic reports and provided examination findings. Dr. Perry diagnosed
lumbar degenerative disc disease, lumbar spinal stenosis, and acquired lumbar spondylolisthesis .

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In March 16 and 30, 2016 reports, Dr. Baldauf discussed appellant’s history of injury and
provided physical examination findings. He diagnosed right hip joint pain, lumbosacral
degenerative disc disease with radiculopathy, lumbar spinal stenosis, acquired lumbar
spondylolisthesis, and lumbago.
In an April 27, 2016 report, Dr. Willis Y. Wu, Board-certified in anesthesiology and pain
medicine, noted lumbar examination findings of mildly limited range of motion and tenderness in
the lumbosacral junction. He diagnosed lumbar intervertebral disc degeneration, lumbar
radiculopathy, lumbar spondylosis without myelopathy, and hip osteoarthritis. Dr. Wu continued
to treat appellant and provided medical reports dated May 13 and June 23, 2016.
By decision dated April 20, 2018, OWCP denied modification of the June 17, 2016
decision.
Appellant appealed to the Board. By decision dated March 12, 2019, the Board affirmed
OWCP’s April 20, 2018 decision, finding that she had not met her burden of proof to establish
causal relationship between her diagnosed medical conditions and accepted factors of her federal
employment.
On October 7, 2019 appellant requested reconsideration. She submitted various articles
about injuries that result from sitting for long periods of time.
By decision dated May 27, 2020, OWCP denied modification.
On January 22, 2021 appellant requested reconsideration. She indicated that she continued
to have pain and suffering due to sitting for six hours a day on a poorly prepared workstation.
Appellant explained that she was diagnosed with degenerative joint disease in 2000, but her
condition was not problematic until she started to work for the employing establishment. She
asserted that her sedentary job duties temporarily aggravated her degenerative joint disease and
her fall in October 2014 permanently aggravated her condition.
By decision dated February 11, 2021, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

4

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

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OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one y ear of the date of
OWCP’s decision for which review is sought. 6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With her January 22, 2021 request for reconsideration, appellant submitted a statement
alleging that she did not experience problems with her degenerative joint disease until she began
to work for the employing establishment. She asserted that her sedentary job duties temporarily
aggravated her degenerative joint disease and her fall in October 2014 permanently aggravated her
condition. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor does it show that OWCP erroneously applied or interpreted a specific
point of law. Her argument is substantially similar to that which was previously considered and
discussed in OWCP’s April 20, 2018 decision. 9 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 10

5

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

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

9

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020); Eugene F. Butler, 36 ECAB 393, 398 (1984).
10

20 C.F.R. § 10.606(b)(3)(i) and (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No.
18-1697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).

5

Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 11 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).12
As appellant has not met any of the regulatory requirements under 20 C.F.R.
§ 10.606(b)(3), pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
11

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

12

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
13

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

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