United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.H., Appellant
and
U.S. POSTAL SERVICE, MENOMONIE POST
OFFICE, Menomonie, MN, Employer
__________________________________________

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Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0839
Issued: May 25, 2021

Case Submitted on the Record

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

JURISDICTION
On March 6, 2020 appellant, through counsel, filed a timely appeal from a February 18,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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 a lumbar condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On October 19, 2016 appellant, then a 53-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) alleging that he developed lower back facet sprain due to
factors of his employment, including significant twisting motions required during mail delivery.
He noted that he first became aware of this condition and its relationship to his employment duties
on September 16, 2016. Appellant stopped work on October 5, 2016.
In an October 4, 2016 report, Dr. Darren K. Lokkesmoe, Board-certified in internal
medicine, diagnosed mechanical low back pain with some mild lumbar nerve impingement
symptoms. He related that appellant developed back pain approximately three weeks prior after
feeling a pop in his back while delivering mail. Appellant’s physical examination revealed positive
straight-right leg raising.
An October 13, 2016 x-ray interpretation of appellant’s lumbar spine revealed minimal
L4_5 and L5-S1 degenerative changes.
Dr. Jay Loftsgaarden, a Board-certified physiatrist, reported on October 13, 2016 that
appellant was seen for low back complaints and grinding pain radiating down the right leg.
Appellant related that his pain began about a month previously while delivering mail, after he felt
a pop in his back while twisting to the side. His physical examination findings included tenderness
over the medial area to the right sacroiliac joint region, limited flexion, severe pain on back rotation
or extension, limited internal left hip rotation with pain in the groin region and some over the
femoral head, mild right hip range of motion, positive straight leg raising on the right, and full
bilateral ankle and knee range of motion. Dr. Loftsgaarden diagnosed facet sprain, degenerative
facet arthritis, and degenerative disc disease, which occurred in context of appellant’s mail carrier
job, which required constant turning to the left. Additionally, he noted that there were elements
of radiculopathy. In a duty status report (Form CA-17) of even date, Dr. Loftsgaarden diagnosed
lumbar facet sprain, which he attributed to appellant’s work. He advised that appellant was
disabled from work.
On October 21, 2016 Dr. Loftsgaarden reviewed x-ray interpretations and provided
examination findings. He found appellant’s symptoms were now more consistent with a diagnosis
of radiculopathy. In a form report of even date, Dr. Loftsgaarden diagnosed lumbar radiculopathy
and indicated by check mark that it was work related. He placed appellant off work pending further
evaluation.
An October 25, 2016 x-ray report of appellant’s lumbar spine related findings of L4-5 and
L5-S1 broad-based posterior bulges and mild L4-5 neural foraminal narrowing.
In November 10, 2016 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of factual and medical

2

evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30
days to submit the necessary evidence.
OWCP subsequently received additional evidence. Dr. Loftsgaarden, in a November 3,
2016 report, noted appellant’s continued pain complaints. Review of appellant’s magnetic
resonance imaging (MRI) scan revealed some L4-5 and L5-S1 mild foraminal stenosis.
Dr. Loftsgaarden found appellant’s dorsiflexor weakness was suggestive of L5 radiculopathy. He
concluded that appellant was to remain off work.
In form reports from dated November 3, 17, and December 8, and 27, 2016,
Dr. Loftsgaarden diagnosed lumbar radiculopathy and indicated by checking a box marked “Yes”
that the diagnosed conditions were work related. He placed appellant off work pending further
evaluation.
In a December 8, 2016 report, Dr. Loftsgaarden indicated that appellant’s condition looked
more likely related to facet arthritis, but there was a suggestion of a discogenic-type problem based
on appellant’s pain relief following injections. Physical examination findings included limited
back extension and flexion and normal lower limbs strength.
In a December 12, 2016 report, Dr. Loftsgaarden noted that he had seen appellant five
times since an initial evaluation on October 13, 2016. Appellant related developing pain and
feeling a pop in his back after twisting in his employment vehicle. The initial diagnosis was facet
sprain the setting of facet degenerative arthritis and degenerative disc disease. Dr. Loftsgaarden
reviewed an MRI scan, which showed minor disc bulges and arthritis. He found appellant disabled
from work due to his inability to perform the twisting required in his job.
A December 29, 2016 MRI scan revealed mild degenerative sacroiliac joint changes and
no significant changes suggest of synovitis or infection.
By decision dated January 11, 2017, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that his diagnosed lumbar
condition was causally related to the accepted factors of his federal employment.
OWCP received a January 10, 2017 report from Dr. Terry K. Schiefer, a Board-certified
neurological surgeon, who diagnosed right-sided L5-S1 radiculopathy, right-sided L4-5 moderate
lateral recess stenosis, right-sided L5-S1 mild-to-moderate lateral recess stenosis, low back pain,
and right lower extremity weakness. Under history of injury, Dr. Schiefer noted that appellant
initially felt a twinge in his back while working and subsequently felt a signficant pop in his back.
Since the incident, appellant reported having severe back pain radiating into this lower extremities,
greater on the right. Dr. Schiefer recommended right-sided L4-5 and L5-S1 hemilaminectomy and
possible discetomy based on appellant’s symptoms, diagnostic test, and examination findings.
A hospital record reflects that appellant underwent a surgical procedure on January 19,
2017 with preoperative and postoperative diagnoses of L5 and S1 right-sided radiculopathies, L5S1 right-sided disc protrusion, and L4-5 and L5-S1 right-sided laeral recess stenosis. January 19,
2017 x-ray interpretation of appellant’s lumbar spine noted a history of radiculopathy and
impression of L4-5 and L5-S1 hemilaminectomy with L5-S1 discectomy.

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In progress notes dated January 20, 2017, Dr. Schiefer diagnosed right lower extremity
weakness, right-sided L5-S1 radiculopathy, right-sided L4-5 moderate lateral recess stenosis,
right-sided L5-S1 mild-to-moderate lateral recess stenosis, low back pain, and stauts post rightsided L4-5 and L5-S1 hemilaminectomy and L5-S1 microdiscetomy, which was performed on
January 19, 2017. Appellant related significant improvement in his pain following the surgery.
Dr. Schiefer, in a January 26, 2017 report, advised that appellant was seen on January 10,
2017 for lumbar complaints. Appellant described that, since September 2016, he had severe low
back pain radiating mainly into the right lower extremity. Since appellant had not responded to
conservative treatment, Dr. Schiefer performed L4-5 right-sided hemilamenctomy and
microdiscectomy surgery on January 19, 2016. He attributed appellant’s L4-5 radiculopathy
symptoms and surgery to the accepted employment factors.
On February 3, 2017 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on July 18, 2017.
Appellant submitted additional evidence. In progress notes dated February 23, 2017,
Dr. Donald T. Bodeau, a Board-certified occupational medicine physician, related that appellant
had been in good health until sustaining a work injury on September 16, 2016 when he felt a pull
in his lower back while delivering mail. He noted appellant’s physical examination findings and
diagnosed significant postlaminectomy back and radicular pain and status post 1 level
microdiscectomy, and 2 level hemilaminectomy. Dr. Bodeau related that appellant would be
disabled from work for at least three months.
Dr. Bodeau, in a February 24, 2017 report, noted that appellant had a history of mild prior
back pain, which generally was self-limited, as well as employment-related events occurring
between September 16 and 30, 2016. Review of MRI scans taken on August 14, 2009 and on
October 27, 2016 showed substantial structural changes. Dr. Bodeau attributed the change to
appellant’s employment injury. He opined that appellant’s diagnosed disc herniation and lumbar
radiculopathy were unquestionably caused by the accepted September 2016 employment factors.
Dr. Bodeau explained that appellant’s work aggravated, precipitated, and accelerated his
underlying back condition beyond the normal progression of the disease.
A February 17, 2017 MRI scan revealed small focal lumbosacral central disc protrusion,
postoperative changes left L5 hemilaminectomy new when compared with the October 27, 2016
MRI scan, and no spinal canal narrowing or neural foraminal narrowing at any level.
In reports dated March 10 and 31, 2017, Dr. Stephen M. Endres, a Board-certified
anesthesiologist, diagnosed lumbar radiculitis, radiculopathy, and status post L5-S1 surgery.
Dr. Bodeau, in progress notes dated April 17, 2017, related that appellant was seen for
postlaminectomy back pain and that he had been referred to the pain clinic for a spinal cord
stimulator.
In progress notes dated May 12, 2017, Dr. Bodeau noted that appellant continued to
complain of back and radicular pain and that he currently used a cane due to leg weakness.

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Dr. Bodeau, in progress notes dated June 9, 2017, reported that appellant was doing well
following implantation of a temporary spinal cord stimulator.
By decision dated October 2, 2017, OWCP’s hearing representative affirmed the
January 11, 2017 decision denying appellant’s claim.
OWCP continued to receive medical evidence. In progress notes dated July 31, 2017,
Dr. Bodeau related examination findings and noted that appellant remained disabled. Diagnoses
included persistent postlaminectomy back pain status post spinal cord stimulator implantation
complicated by development of pulmonary embolus and pneumonia.
Dr. Bodeau, in progress notes dated September 8, 2017, noted that appellant reported
substantial improvement in his leg and back pain and that he had not developed any additional
pulmonary emboli. Physical findings included an antalgic gait, negative straight leg raising, and
has trouble with tiptoe gait.
In progress notes dated October 20, 2017, Dr. Bodeau summarized appellant’s medical
history. He noted that appellant had experienced some mechanical back issues in 2009, but no
radicular or leg symptoms. Dr. Bodeau opined that the frequent repetitive lifting and twisting
required in appellant’s job most likely aggravated, accelerated, and precipitated his underlying
back condition beyond the normal progression and created appellant’s back and radicular leg pain,
need for surgery, and associated care.
In an October 25, 2017 report, Dr. Bodeau related that appellant had been under his care
for treatment of his occupational back injury, resulting lumbar laminectomy, and spinal cord
stimulator. He noted that appellant provided a consistent history of injury involving repetitive
lifting, bending, and twisting in sorting and delivering mail. Dr. Bodeau noted that, while
appellant may have had a preexisting back condition, the incident occurring on or about
September 16, 2016 clearly aggravated, accelerated, and precipitated his underlying condition
beyond its normal progression.
In progress notes and a form report dated November 1, 2017, Dr. Bodeau opined that
appellant had reached a plateau. He indicated that appellant was capable of working no more than
four hours a day in a sedentary position. Work restrictions included: no lifting more 10 pounds;
rare bending, kneeling, squatting, twisting, climbing, and reaching above the shoulders; occasional
forward reaching; and the ability to change his position every half hour as needed. Dr. Bodeau
noted that appellant would require use of a cane and knee brace.
In progress notes dated March 9, 2018, Dr. Bodeau reiterated findings from his prior
reports. He opined that appellant was permanently and totally disabled from any physically
demanding employment.
In progress notes dated April 19, 2018, Melissa C. Brown, an advanced practice registered
nurse, noted that appellant was seen for back pain. She diagnosed right-sided L5-S1 radiculopathy,
right-sided L4-5 moderate lateral recess stenosis, low back pain, right-sided L5-S1 mild-tomoderate lateral recess stenosis, right lower extremity weakness, and status post right-sided L4-5
and L5-S1 hemilaminectomy and L5-S1 microdiscectomy.

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On May 22, 2018 appellant requested reconsideration.
By decision dated October 15, 2018, OWCP denied modification, finding that the medical
evidence of record was insufficiently rationalized to establish causal relationship between the
diagnosed conditions and the accepted employment factors.
On December 18, 2018 appellant requested reconsideration and submitted additional
evidence.
In a report dated November 28, 2018, Dr. Michael Fitzgerald, an occupational medicine
specialist Board-certified in family medicine, noted that appellant sustained a back injury due to
his employment as a rural letter carrier. He explained that appellant’s job duties required frequent
awkward positions twisting, reaching, lifting, pulling, and bending, which contributed to the
diagnosed L5-S1 lumbar disc herniation. Dr. Fitzgerald noted that appellant had previously been
treated for a 2009 back injury. He compared the MRI scans taken at the time, which showed mild
L5-S1 disc bulge with early disc desiccation and no neural foraminal or spinal canal compromise,
with an MRI scan following the 2016 injury, which showed L4-5 and L5-S1 disc bulging
progression with L4-5 disc abutting the L5 nerve on the right. Dr. Fitzgerald opined that
appellant’s work activities accelerated, aggravated, and precipitated chronic lumbar degenerative
disc disease resulting in disc herniation.
By decision dated February 13, 2019 OWCP denied modification.
On March 27, 2019 appellant requested reconsideration.
By decision dated April 19, 2019, OWCP denied appellant’s request for reconsideration as
he failed to identify the grounds for his request or submit any evidence in support of his request.
OWCP subsequently received a November 12, 2019 report, wherein Dr. Fitzgerald noted
that on November 28, 2018 he had taken over appellant’s care and treatment following
Dr. Bodeau’s retirement. Dr. Fitzgerald related that appellant sustained a back injury on
September 16, 2016 as a result of his rural mail carrier duties. Appellant’s job duties required
frequent twisting of the back, pulling, reaching, and lifting up to 70 pounds. On the date of injury
he related that he felt a pop in his lower lumbar area and bilateral leg numbness while performing
his work duties. Dr. Fitzgerald summarized the treatment provided, including diagnostic test
results, surgery, and cord stimulator implantation. He reported that following implantation of the
spinal cord stimulator that appellant developed a pulmonary embolism, chest pain, and fever.
Diagnoses included lumbar disc disease with right-sided L5 and S1 radiculopathies and
postlaminectomy syndrome, which he attributed to the accepted September 16, 2016 work
incident. In support of this conclusion, Dr. Fitzgerald explained that the twisting, bending, turning,
and lifting aggravated appellant’s chronic lumbar degenerative disc disease beyond its normal
course. This aggravation was caused by significantly increased pressure on the intervertebral discs
causing new or worsening protrusions, which in turn caused radiculopathy and nerve impingement
from the protrusion into disc material. Dr. Fitzgerald indicated that his opinion and findings were
supported by the progressive changes noted on MRI scans, initial physical examination findings,
and symptoms. Regarding appellant’s 2009 treatment for back pain, Dr. Fitzgerald noted that his
symptoms had resolved with physical therapy and no back pain had been reported in a

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December 2015 visit. Moreover, appellant was asymptomatic until performing the repetitive rural
mail carrier duties. Dr. Fitzgerald opined that the January 19, 2017 surgery and spinal cord
stimulator were medically necessary to treat his condition. He concurred with Dr. Bodeau’s
opinion that appellant was permanently and totally disabled from work.
On November 27, 2019 appellant, through counsel, requested reconsideration.
By decision dated February 18, 2020, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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,4 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.5 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.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical

3

Id.

4
C.G., Docket No. 20-0957 (issued January 27, 2021); J.W., Docket No. 18-0678 (issued March 3, 2020); S.B.,
Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

J.S., Docket No. 18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No. 18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

C.G., supra note 4; S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

8
A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).

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certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment factors identified by the employee.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his claim, appellant provided narrative medical reports from Dr. Fitzgerald
dated November 28, 2018 and November 12, 2019. Dr. Fitzgerald related appellant’s complaints
of lumbar pain and bilateral lower extremity numbness after September 16, 2016. He summarized
appellant’s medical treatment and physical examination findings. Dr. Fitzgerald diagnosed lumbar
disc disease with right-sided L5 and S1 radiculopathies and postlaminectomy syndrome, which he
attributed to appellant’s employment. In both reports, he opined that appellant’s 2009 back
condition was exacerbated by his employment duties, which included repetitive frequent twisting
of the back, pulling, reaching, and lifting up to 70 pounds. In the November 12, 2019 report,
Dr. Fitzgerald further noted appellant’s history regarding September 16, 2016 and explained that
twisting, bending, turning, and lifting caused significantly increased pressure on the intervertebral
discs causing new or worsening protrusions, which, in turn, caused radiculopathy and nerve
impingement from the protrusion into disc material. In addition, he related that appellant’s 2009
back condition had been successfully treated by physical therapy with no symptoms or reports of
pain until September 16, 2016. Moreover, a review of appellant’s MRI scans showed a significant
progression of the underlying lumbar disc bulge from the mild lumbar disc bulge shown on the
2009 MRI scan.
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.11 OWCP has an obligation to see that justice is
done.12
The Board finds that Dr. Fitzgerald’s opinion demonstrates his knowledge of appellant’s
preexisting lumbar conditions and, although his opinion is not sufficiently rationalized to meet
9

R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J., 59
ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
J.D., Docket No. 20-0404 (issued July 22, 2020); K.G., Docket No. 18-1598 (issued January 7, 2020); M.S., Docket
No. 19-0913 (issued November 25, 2019).
11

See J.P., Docket No. 19-1206 (issued February 11, 2020); M.G., Docket No. 18-1310 (issued April 16, 2019);
Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).
12
See J.P., id.; C.M., Docket No. 17-1977 (issued January 29, 2019); A.J., Docket No. 18-0905 (issued
December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

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appellant’s burden of proof to establish his claim, it is sufficient to require further development of
the case by OWCP.13
Therefore, the Board finds that the case shall be remanded to OWCP. On remand OWCP
shall prepare a statement of accepted facts, the medical evidence of record, and appellant to a
specialist in the appropriate field of medicine for a second opinion evaluation. Upon referral, the
physician shall conduct a physical examination and provide a rationalized medical opinion as to
whether appellant’s lumbar conditions were caused or aggravated by factors of his employment.
If the second opinion physician opines that the diagnosed conditions are not causally related, he
or she must explain with rationale how or why the opinion differs from that of Dr. Fitzgerald’s
reports. Following this, and any other further development as deemed necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 18, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with decision of the Board.
Issued: May 25, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

13
See J.P., id.; D.S., Docket No. 17-1359 (issued May 3, 2019); C.W., Docket No. 17-1293 (issued February 12,
2018); see also John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF JUSTICE, IMMIGRATION
& NATURALIZATION SERVICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 08-1911
Issued: August 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 30, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 31, 2007 merit decision modifying his wage-earning
capacity and a May 29, 2008 decision denying his request for a hearing. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to modify appellant’s
wage-earning capacity effective January 20, 2008; and (2) whether the Office properly denied his
request for a hearing under 5 U.S.C. § 8124(b)(1).
FACTUAL HISTORY
The Office accepted that on February 17, 1994 appellant, then a 53-year-old assistant
area port director, sustained a lumbar strain with radiculoneuritis, herniated nucleus pulposus at
L4-5 and aggravation of degenerative disc disease and osteoarthritis at L4-5. He was disabled

beginning March 8, 1994 and returned to work for the employing establishment on
April 25, 1994. Appellant stopped work on July 14, 1994 and did not return.1 On February 17,
1994 he underwent lumbar fusion surgery at L4-5.
In a June 7, 2000 decision, the Office adjusted appellant’s wage-loss compensation to
reflect his capacity to earn wages for eight hours per day in the constructed position of
elementary school teacher. It determined that appellant could earn $421.85 per week in this
position.
Appellant received extensive treatment for his condition from Dr. Travis A. Calvin, Jr., a
Board-certified neurosurgeon. On February 19, 2004 he underwent further laminectomy and
decompression surgery at L4-5 with posterior lumbar interbody fusion. Appellant was reinstated
to temporary total disability status due to his surgery.
On April 17, 2006
Dr. Thomas J. Sabourin, a Board-certified orthopedic surgeon, who served as an Office referral
physician, stated that appellant’s positive findings on examination showed that he continued to
have residuals of the February 17, 1994 employment injury. However, appellant was able to
work for four hours per day in a job that restricted him from lifting more than 15 pounds and
driving more than an hour to or from work. On May 10, 2006 Dr. Travis determined that
appellant continued to have employment-related residuals which rendered him totally disabled
from work.
The Office found a conflict in medical opinion regarding appellant’s capacity to work
and referred him to Dr. Louis Lurie, a Board-certified orthopedic surgeon, for an impartial
medical examination. On November 13, 2006 Dr. Lurie reviewed appellant’s medical history,
including his progress since his February 19, 2004 back surgery. He reported findings on
examination, including positive straight leg raising and some limitation of back motion. There
was no atrophy of the lower extremities. Dr. Lurie noted that appellant reported that he felt that
he could work four hours per day at a job that did not require such duties as bending or lifting
more than 15 pounds. He found that appellant continued to have residuals of his February 17,
1994 employment injury and stated, “The reason for this is on the basis of his history,
[appellant’s] physical examination showing positive straight leg raising, decreased sensation and
weakness in his right lower extremity, and the x-rays showing the fact that the patient had need
for pedicle screws for the L4-5 intervertebral disc space.” Dr. Lurie indicated that appellant
could not return to his regular work but could work four hours per day with restrictions on
bending, lifting more than 15 pounds and driving an hour or more to or from work.2
Appellant participated in vocational rehabilitation efforts sponsored by the Office and, in
April 2007, his vocational rehabilitation counselor determined that he was capable of working as
an information clerk for four hours per day. The sedentary job did not require bending, lifting

1

Appellant periodically worked as a teacher for private employers.

2

In a December 11, 2007 report, an Office medical adviser indicated that he agreed with Dr. Lurie’s findings
regarding disability.

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more than 10 pounds or driving an hour or more to or from work. The rehabilitation counselor
determined that the position was reasonably available in appellant’s commuting area.3
In a September 14, 2007 letter, the Office advised appellant that it proposed to modify his
wage-loss compensation based on its determination that he was capable of earning wages in the
constructed position of information clerk. The rehabilitation counselor found this position to be
appropriate and reasonably available in appellant’s commuting area. The duties of the
information clerk position were within the work restrictions recommended by the impartial
medical specialist, Dr. Lurie, whose opinion represented the weight of the medical evidence
regarding appellant’s ability to work.
Appellant submitted several reports dated between September and November 2007, in
which Dr. Calvin checked a “yes” box indicating that appellant remained totally disabled due to
his employment injury.
In a December 31, 2007 decision, the Office adjusted appellant’s compensation to reflect
that he was capable of earning wages in the constructed position of information clerk. It
performed a Shadrick calculation which adjusted his compensation effective January 20, 2008.4
In a letter dated April 7, 2008, received by the Office on April 11, 2008, appellant
requested a hearing before an Office hearing representative. He asserted that he had depression
which prevented him from requesting a hearing in a timely manner.
In a May 29, 2008 decision, the Office denied appellant’s hearing request. It found that
his request was untimely. It exercised its discretion and denied the request by finding that the
case could be addressed by submitting additional medical evidence to establish a greater loss of
wage-earning capacity with a request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Compensation Act,5 once a loss of wage-earning capacity
is determined, a modification of such a determination is not warranted unless there is a material
change in the nature and extent of the employment-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was in fact
erroneous.6 The burden of proof is on the party attempting to show the award should be
modified.7 Once the Office has accepted a claim it has the burden of justifying modification of

3

The position paid between $8.50 and $14.75 per hour. Appellant’s attempts to find work were unsuccessful.

4

The Office found that appellant could earn $219.20 per week.

5

5 U.S.C. §§ 8101-8193.

6

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

7

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

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compensation benefits.8 The Office’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.9
Under section 8115(a) of the Act, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, his wage-earning capacity is determined with due regard
to the nature of his injury, his degree of physical impairment, his usual employment, his age, his
qualifications for other employment, the availability of suitable employment and other factors
and circumstances which may affect his wage-earning capacity in his disabled condition.10
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions.11 The job selected for determining wage-earning
capacity must be a job reasonably available in the general labor market in the commuting area in
which the employee lives.12 The fact that an employee has been unsuccessful in obtaining work
in the selected position does not establish that the work is not reasonably available in his
commuting area.13 Once an appropriate position has been established, application of the
principles set forth in the Shadrick decision will result in the percentage of the employee’s loss
of wage-earning capacity.14
Section 8123(a) of the Act provides in pertinent part: “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.”15 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist 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.16

8

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

9

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C § 8115(a).

11

Albert L. Poe, 37 ECAB 684, 690 (1986), David Smith, 34 ECAB 409, 411 (1982).

12

Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See
Glen L. Sinclair, 36 ECAB 664, 669 (1985).
13

See Leo A. Chartier, 32 ECAB 652, 657 (1981).

14

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953).
15

5 U.S.C. § 8123(a).

16

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

4

ANALYSIS -- ISSUE 1
The Office accepted that on February 17, 1994 appellant sustained a lumbar strain with
radiculoneuritis, herniated nucleus pulposus at L4-5 and aggravation of degenerative disc disease
and osteoarthritis at L4-5. On February 17, 1994 he underwent lumbar fusion surgery at L4-5.
In a June 7, 2000 decision, the Office adjusted appellant’s wage-loss compensation to reflect his
capacity to earn wages for eight hours a day in the constructed position of elementary school
teacher. On February 19, 2004 appellant underwent further laminectomy and decompression
surgery at L4-5 with posterior lumbar interbody fusion. He was reinstated to temporary total
disability status due to his surgery.
The Board finds that the Office properly modified its determination of appellant’s wageearning capacity by showing that there was a material change in the nature and extent of
appellant’s employment-related condition.
The Office properly determined that there was a conflict in the medical opinion between
Dr. Calvin, an attending Board-certified neurosurgeon, and Dr. Sabourin, a Board-certified
orthopedic surgeon, acting as an Office referral physician, regarding appellant’s ability to
work.17 In order to resolve the conflict, it referred appellant, pursuant to section 8123(a) of the
Act, to Dr. Lurie, a Board-certified orthopedic surgeon, for an impartial medical examination.
On November 13, 2006 Dr. Lurie reported findings on examination and concluded that
appellant continued to have residuals of his February 17, 1994 employment injury based on his
history, his physical examination showing positive straight leg raising, decreased sensation and
weakness in his right lower extremity, and the x-rays showing the fact that he had need for
pedicle screws for the L4-5 intervertebral disc space. He advised that appellant could not return
to his regular work but could work four hours per day with restrictions on bending, lifting more
than 15 pounds and driving an hour or more to or from work.
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Lurie, the impartial medical specialist selected to resolve the
conflict in the medical opinion. The report of Dr. Lurie establishes that appellant was able to
work as an information clerk, a sedentary position that only required lifting up to 10 pounds.18

17

On April 17, 2006 Dr. Sabourin noted that appellant’s positive findings on examination showed that he
continued to have residuals of the February 17, 1994 employment injury. He found, however, that appellant was
able to work for four hours per day in a job that restricted him from lifting more than 15 pounds and driving more
than an hour to or from work. In contrast, Dr. Calvin determined on May 10, 2006 that appellant continued to have
employment-related residuals which rendered him totally disabled for work.
18

Appellant submitted several reports, dated between September and November 2007, in which Dr. Calvin
checked a “yes” box indicating that he was totally disabled due to his employment injury. The Board has held,
however, that when a physician’s opinion on causal relationship consists only of checking “yes” to a form question,
that opinion has little probative value and is insufficient to establish causal relationship. Lillian M. Jones, 34 ECAB
379, 381 (1982). These reports reiterate Dr. Calvin’s stated opinion on appellant’s disability and, thus, are
insufficient to overcome the opinion of the impartial medical specialist or create a new conflict as Dr. Calvin was on
the side of the conflict that the impartial medical specialist resolved. William Morris, 52 ECAB 400, 404 (2002).

5

The Office properly relied on the opinion of the rehabilitation counselor to find that
appellant was vocationally capable of performing the information clerk position. It considered
the proper factors, such as availability of suitable employment and appellant’s physical
limitations, usual employment, age and employment qualifications, in determining that the
position of information clerk represented appellant’s wage-earning capacity.19 Appellant did not
submit any evidence or argument showing that he could not vocationally or physically perform
the information clerk position. The weight of the evidence of record establishes that he had the
requisite physical ability, skill and experience to perform the position of information clerk and
that such a position was reasonably available within the general labor market of appellant’s
commuting area.20 As noted above, the Office established that there was a material change in the
nature and extent of the employment-related condition. Therefore, it properly modified its
determination of appellant’s wage-earning capacity.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act, concerning a claimant’s entitlement to a hearing before an
Office representative, provides in pertinent part: “Before review under section 8128(a) of this title,
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.”21 As section 8124(b)(1) is unequivocal in setting forth the time
limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless
the request is made within the requisite 30 days.22 The date of filing is fixed by postmark or other
carrier’s date marking.23
The Board has held that the Office, in its broad discretionary authority in the administration
of the Act, has the power to hold hearings in certain circumstances where no legal provision was
made for such hearings and that the Office must exercise this discretionary authority in deciding
whether to grant a hearing.24 Specifically, the Board has held that the Office has the discretion to
grant or deny a hearing request on a claim involving an injury sustained prior to the enactment of
the 1966 amendments to the Act which provided the right to a hearing,25 when the request is made
after the 30-day period for requesting a hearing,26 and when the request is for a second hearing on
the same issue.27
19

See Clayton Varner, 37 ECAB 248, 256 (1985).

20

The Office also properly applied the Shadrick formula.

21

5 U.S.C. § 8124(b)(1).

22

Ella M. Garner, 36 ECAB 238, 241-42 (1984).

23

See 20 C.F.R. § 10.616(a).

24

Henry Moreno, 39 ECAB 475, 482 (1988).

25

Rudolph Bermann, 26 ECAB 354, 360 (1975).

26

Herbert C. Holley, 33 ECAB 140, 142 (1981).

27

Johnny S. Henderson, 34 ECAB 216, 219 (1982).

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ANALYSIS -- ISSUE 2
Appellant’s April 7, 2008 hearing request was made more than 30 days after issuance of
the Office’s December 31, 2007 decision. Thus, he was not entitled to a hearing as a matter of
right. The Office properly found that appellant was not entitled to a hearing as a matter of right
because his April 2008 hearing request was not made within 30 days of the Office’s December 31,
2007 decision.28
The Office also has the discretionary power to grant a hearing when a claimant is not
entitled to a hearing as a matter of right. In the May 29, 2008 decision, it properly exercised its
discretion by finding that the issue in the case could be addressed by submitting additional
medical evidence to establish a greater loss of wage-earning capacity. The Board has held that
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 deduction from established facts.29 In the
present case, the Office did not abuse its discretion in denying appellant’s untimely request for a
hearing.
CONCLUSION
The Board finds that the Office met its burden of proof to modify its determination of
appellant’s wage-earning capacity effective January 20, 2008. The Board further finds that the
Office properly denied appellant’s request for a hearing under section 8124 of the Act.

28

Appellant asserted that he had depression which prevented him from filing in a timely manner. He did not
submit medical evidence supporting this assertion.
29

Daniel J. Perea, 42 ECAB 214, 221 (1990).

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 29, 2008 and December 31, 2007 decisions are affirmed.
Issued: August 7, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-199
Issued: June 8, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 3, 2011 appellant, through his attorney, filed a timely appeal from an
October 27, 2011 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 OWCP met its burden of proof to terminate appellant’s
compensation benefits on March 22, 2011 on the grounds that he had no disability or residuals
causally related to an April 20, 2010 employment injury.
On appeal appellant’s attorney asserts that OWCP failed to create a proper record,
including an incomplete statement of accepted facts and provided leading questions to an OWCP
referral physician. He requested that the October 27, 2011 decision be set aside and the instant

1

5 U.S.C. §§ 8101-8193.

claim doubled with a 1993 claim, accepted for aggravation of degenerative disc disease and
herniated disc at L4-5.
FACTUAL HISTORY
On July 9, 2010 OWCP accepted that appellant, then a 46-year-old letter carrier,
sustained an employment-related lumbar sprain on April 20, 2010 while retrieving mail from his
postal vehicle. Appellant did not stop work but missed intermittent periods for medical visits
and physical therapy, for which he was paid wage-loss compensation. A 1993 claim was
accepted for aggravation of lumbar degenerative disc disease and disc bulge and a 2000 claim for
low back pain.2
In a May 24, 2010 report, Dr. Rajesh Mehta, Board-certified in internal medicine and
physical medicine and rehabilitation, noted history of injury and a chief complaint of mid and
low back pain. He provided findings on physical examination and diagnosed lumbar and
thoracic radiculopathy. Dr. Mehta performed right lumbar epidural steroid injections on May 24,
June 28 and August 16, 2010.
A September 28, 2010 magnetic resonance imaging (MRI) scan of the lumbar spine
demonstrated mild degenerative changes, particularly at the L4-5 level, a probable hemangioma
at L3, and a mild broad-based foraminal protrusion at L3-4 on the right with minor contact of
exiting right L3 nerve root. On October 4, 2010 Dr. Mehta reviewed the MRI scan study
findings and appellant’s complaint of intermittent low back and diffuse right leg pain. Physical
examination demonstrated poorly localized tenderness in the lumbosacral spine with mild to
moderate restriction lumbosacral spine range of motion. Dr. Mehta diagnosed chronic right
lumbosacral radiculopathy and recommended an additional epidural injection. On November 1,
2010 he advised that appellant’s general examination was unchanged. Dr. Mehta performed a
lower extremity electrodiagnostic study that demonstrated right L5 and, to a lesser extent, L4
radiculopathy with more chronic than acute changes and no evidence of other focal nerve
damage.
On December 1, 2010 OWCP referred appellant to Dr. Scott J. Szabo, a Board-certified
orthopedic surgeon, for a second opinion evaluation. Dr. Szabo was provided with a statement
of accepted facts that described the history of injury and indicated that the claim was accepted
for a lumbar sprain. The statement of accepted facts also noted that appellant had additional
claims, including a September 1, 1993 injury accepted for aggravation of lumbar degenerative
disc disease and disc bulge and a January 8, 2000 claim accepted for low back pain. OWCP
asked that Dr. Szabo answer specific questions:
“Are the claimant’s current symptoms due to the work injury or his preexisting
degenerative condition?
“Your narrative report, including your response to the questions below, should
clarify the issues discussed above. The attached statement of accepted facts
2

The 1993 claim was adjudicated by OWCP under file number xxxxxx353, the 2000 claim under file number
xxxxxx519 and the instant claim under file number xxxxxx268.

2

(SOAF) provides a factual summary of the relevant facts accepted by [OWCP].
Previous medical reports may not have been based on the attached SOAF. You
must use the SOAF as the only factual framework for your opinion.
“Provide all diagnoses found, and their codes according to ICD-9-CM. Explain
which, if any, are medically connected to the incident.
“Are there any subjective complaints that do not correspond with objective
findings?
“Has the patient reached maximum medical improvement (MMI) from the work
injury? If so, approximately when? If not, when do you expect that MMI should
occur?
“Is the diagnosed condition medically connected to the factors of employment as
described in the SOAF either by direct cause, aggravation, precipitation or
acceleration?
“If aggravation is indicated, it should be explained if this is temporary or
permanent. If temporary, when did such aggravation cease or when may it be
expected to cease? If permanent, what material change has occurred to alter the
course of the underlying disease? Give detailed reasoning for your conclusions.
“Describe any nonindustrial or preexisting disability.
“Does the claimant continue to suffer residuals of the injury? Give your medical
reasons for the opinion expressed.
“Prognosis and recommendations for medical treatment if indicated.
“Description of any injury-related factors of disability, including objective
findings and subjective complaints.
“Describe the claimant’s physical limitations resulting from the work[-]related
disability, as well as any restrictions attributable to preexisting conditions.
Complete the enclosed Form OWCP-5 based upon pertinent findings.
“Please provide comments on the patient’s medical treatment thus far, particularly
whether treatment has been appropriately oriented toward returning the patient to
productivity and employment.
“Are the lumbar epidural injections needed due to the April 20, 2010 work
incident or the claimant’s preexisting degenerative disc disease?
“Please provide your well[-]reasoned opinion on the extent of the injury sustained
on April 20, 2010. Did the claimant sustain more than the accepted lumbar
strain?”

3

In a December 23, 2010 report, Dr. Szabo reviewed the medical record, including
imaging studies, and the statement of accepted facts. He advised that appellant had a significant
preexisting history with two lumbar spine decompression surgical procedures. Dr. Szabo
described the April 20, 2010 employment injury and appellant’s complaints of sharp, lumbar
pain, made worse with exertion, prolonged positions and at the end of the workday. He noted
that appellant arose and mounted the examination table without difficulty or assistance, and
exhibited a normal gait, ability to walk on toes and heels and performed a squat. Dr. Szabo
stated that on physical examination the lumbar spine was not tender to palpation and there was
no paravertebral muscle spasm. Straight leg raise tests were negative seated and supine and the
Faber’s test was mildly positive on the right. Dr. Szabo noted that appellant reported
subjectively diminished sensation to light touch over the entirety of his right leg. He diagnosed
an employment-related lumbar strain, resolved. Dr. Szabo advised that there was no evidence
that the April 20, 2010 injury exacerbated or accelerated appellant’s preexisting condition,
opining that his present symptoms were unrelated to the April 20, 2010 employment injury. He
noted that appellant had outstanding subjective complaints but did not have any objective
impairment or dysfunction on examination. There was good spinal motion, no tenderness and no
spasm, and no evidence of neurological abnormalities during motor testing of strength and
reflexes. Dr. Szabo indicated that appellant’s present treatment including narcotics, muscle
relaxants and anti-inflammatories that were related to the preexistent lumbar spine disease and
not the April 20, 2010 lumbar strain. He concluded that appellant had no residuals and needed
no further medical treatment as a result of the April 20, 2010 injury. Any ongoing treatment
would be for appellant’s preexistent lumbar spine pathology. In an attached work capacity
evaluation, Dr. Szabo advised that appellant could perform his usual job for eight hours a day
without restrictions.
In a letter dated February 10, 2011, OWCP proposed to terminate appellant’s medical
benefits and monetary compensation for the instant claim on the grounds that the medical
evidence, as characterized by Dr. Szabo’s December 23, 2010 report, established that appellant’s
condition due to the April 20, 2010 employment injury had resolved.
Appellant disagreed with the proposed termination. He stated that, although he had a
previous back injury and surgery in 1994 to 1995, his back was fine until the April 20, 2010
work injury, and since then he had to take medications and wear a back brace at work.
By decision dated March 22, 2011, OWCP finalized the termination of appellant’s
monetary compensation and medical benefits.
Appellant timely requested a hearing that was held on August 11, 2011. At the hearing,
counsel asserted that the statement of accepted facts provided to Dr. Szabo was incomplete, that
the physician was asked leading questions and that the instant case should be consolidated with
the prior claim approved for aggravation of degenerative disc disease. Appellant testified that he
returned to full duty but continued to work through pain.
In an October 27, 2011 decision, an OWCP hearing representative affirmed the
March 22, 2011 decision. She noted that appellant sustained an employment-related back injury
in 1993 that was accepted for herniated disc at L4-5 and aggravation of lumbar degenerative
joint disease and that appellant had two surgical procedures under the 1993 claim. The hearing

4

representative found that the statement of accepted facts provided to Dr. Szabo was sufficient
and did not ask leading questions. She noted that appellant failed to provide a rationalized
medical opinion to support that he continued to have residuals of the April 2010 employment
injury and found that the weight of the medical opinion rested with the opinion of Dr. Szabo.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
OWCP’s burden of proof to terminate compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits for the April 20, 2010 employment injury.
The Board finds that the weight of the medical evidence rests with the December 23,
2010 second opinion evaluation of Dr. Szabo who provided a comprehensive evaluation based
on his review of the statement of accepted facts and medical record, the history of injury,
appellant’s complaints of continued pain, and physical examination findings. Dr. Szabo
provided a thorough physical examination and found no evidence that the April 20, 2010 injury
exacerbated or accelerated appellant’s condition. He stated that appellant’s present symptoms
were preexistent and unrelated to the April 20, 2010 employment injury. Dr. Szabo noted that
appellant had outstanding subjective complaints but did not have an objective impairment or
dysfunction on examination, with good spinal motion, no tenderness, and no spasm, and no
evidence of abnormalities of his neurological assessment in testing motor strength and reflexes.
He concluded that appellant had no residuals and needed no further treatment as a result of the
April 20, 2010 injury and could perform his usual job duties without restriction. The weight of
the medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.5
In reports dated May 20 to November 1, 2010, Dr. Mehta described appellant’s condition
but did not relate the physical findings to the April 20, 2010 work injury.
As to appellant’s arguments on appeal, the Board finds that the statement of accepted
facts was not incomplete and properly identified appellant’s previously accepted conditions. In
the December 23, 2010 report, Dr. Szabo acknowledged appellant’s preexisting history. The
Board finds that the questions posed to Dr. Szabo were not leading in nature. The Board has
3

Jaja K. Asaramo, 55 ECAB 200 (2004).

4

Id.

5

C.B., Docket No. 08-1583 (issued December 9, 2008).

5

defined a leading question as one which suggests or implies an answer to the question posed.6
The questions asked in this case were open-ended and did not suggest an answer. They were of
the type of medical query to be answered by a physician in describing a claimant’s condition.7
The instant claim involves an April 20, 2010 work injury and, as there is no reasoned
contemporaneous medical evidence supporting appellant’s claim for continuing disability and
residuals due to this injury, OWCP properly terminated his compensation benefits on
March 22, 2011.
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 OWCP met its burden of proof to terminate appellant’s monetary
compensation and medical benefits on March 22, 2011.

6

Carl D. Johnson, 46 ECAB 804 (1995).

7

See J.D., Docket No. 11-131 (issued December 21, 2011).

6

ORDER
IT IS HEREBY ORDERED THAT the October 27, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 8, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
DEPARTMENT OF THE NAVY, U.S. MARINE
CORPS, COMPTROLLER DEPARTMENT,
MARINE CORPS AIR STATION, Beaufort, SC,
Employer
__________________________________________

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

Docket No. 09-1865
Issued: March 22, 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 July 14, 2009 appellant filed a timely appeal from an April 29, 2009 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to 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’s claim for an occupational hearing loss was timely filed
pursuant to 5 U.S.C. § 8122(a).
FACTUAL HISTORY
On September 3, 2008 appellant, then a retired 55-year-old budget technician, filed a
Form CA-2, occupational disease claim, alleging that she sustained an employment-related
hearing loss in both ears. She stated that it had only recently come to her attention that she could
file a claim. Appellant was first aware of the disease and its relationship to her federal

employment on October 1, 1990.1 She attached a hearing loss questionnaire signed on
August 26, 2008, a signed list of federal and nonfederal employment beginning in June 1973 in
which she again stated she first noticed the hearing loss and its relationship to her employment in
1990, a description of work-related noise exposure and audiograms from the employing
establishment dated from 1975 to 1986.2 Appellant also submitted a November 18, 2006
audiogram performed by Joseph E. Gillespie, an audiologist.
An employing establishment deputy comptroller noted that she had been appellant’s
supervisor from December 2000 until her retirement in January 2002. During that time period,
appellant was not exposed to any excessive noise. The supervisor was not aware of any medical
examinations pertaining to appellant’s claim. On October 9, 2008 the Office requested
additional evidence. By letter dated October 23, 2008, appellant’s attorney responded that she
was exposed to jet engine noise while employed as a budget technician.
On February 10, 2009 the Office referred appellant to Dr. David E. Maurer, a Boardcertified otolaryngologist, for a second opinion evaluation. In a February 24, 2009 report,
Dr. Maurer provided findings on physical examination and audiogram test results. He diagnosed
mild-to-moderate bilateral sensorineural hearing loss. Dr. Maurer found that it was caused by
employment-related noise exposure and recommended a trial of hearing aids and noise
protection. On March 5, 2009 the Office accepted that appellant sustained employment-related
bilateral hearing loss. In an April 6, 2009 report, an Office medical adviser reviewed
Dr. Maurer’s report and the February 24, 2009 audiogram obtained on his behalf. He advised
that the results were valid and found that appellant had a 15 percent hearing loss in each ear. The
Office medical adviser also authorized hearing aids.
By decision dated April 29, 2009, appellant was granted a schedule award for a 15
percent hearing loss in each ear, for 30 weeks, to run from February 24 to September 21, 2009.
Compensation was based on a weekly pay rate of $407.77.
LEGAL PRECEDENT
The timeliness of a claim is a preliminary jurisdictional issue that precedes any
determination on the merits of the claim. The Board may raise the issue on appeal even if the

1

Appellant’s attorney forwarded the undated claim to the employing establishment on August 26, 2008. A
deputy comptroller signed the form on September 3, 2008. Appellant’s attorney authorization form was signed on
August 5, 2008.
2

The audiograms demonstrated decibel levels at 500, 1,000, 2,000 and 3,000 hertz as follows: July 7, 1982 left
ear -- 20, 10, 10 and 10; right ear -- 15, 10, 15 and 10; September 21, 1982 left ear -- 15, 10, 15 and 25; right ear -15, 10, 15 and 15; September 17, 1983 left ear -- 20, 5, 15 and 20; right ear -- 15, 10, 15 and 15; October 14, 1983
left ear -- 20, 5, 15 and 20; right ear -- 15, 10, 15 and 15; July 23, 1984 left ear -- 10, 5, 5 and 20; right ear -- 10, 5,
10 and 10; September 4, 1985 left ear -- 10, 5, 10 and 20; right ear -- 15, 5, 10 and 5; and September 21, 1986 left
ear -- 15, 10, 15 and 25; right ear -- 15, 10, 15 and 15. The record also contains an undated audiogram and
incomplete results dated May 4, 1975 and April 14, 1978.

2

Office did not base its decision on the time limitation provisions of the Federal Employees’
Compensation Act.3
In cases of injury on or after September 7, 1974, section 8122(a) of the Act provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death. Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless: (1) the immediate
superior had actual knowledge of the injury or death within 30 days. The knowledge must be
such as to put the immediate superior reasonably on notice of an on-the-job injury or death; or
(2) written notice of injury or death as specified in section 8119 was given within 30 days.4
The three-year time period begins to run from the time the employee is aware or by the
exercise of reasonable diligence should have been aware, that his or her condition is causally
related to the employment. For actual knowledge of a supervisor to be regarded as timely filing,
an employee must show not only that the immediate superior knew that he or she was injured,
but also knew or reasonably should have known that it was an on-the-job injury.5
Even if an original claim for compensation for disability or death is not filed within three
years after the injury or death, compensation for disability or death may be allowed if written
notice of injury or death as specified in section 8119 was given within 30 days. Section 8119
provides that a notice of injury or death shall be given within 30 days after the injury or death; be
given to the immediate superior of the employee by personal delivery or by depositing it in the
mail properly stamped and addressed; be in writing; state the name and address of the employee;
state the year, month, day and hour when and the particular locality where the injury or death
occurred; state the cause and nature of the injury or in the case of death, the employment factors
believed to be the cause; and be signed by and contain the address of the individual giving the
notice. Actual knowledge and written notice of injury under section 8119 serve to satisfy the
statutory period for filing an original claim for compensation.6
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between his or her condition and his or her employment. When an employee becomes aware or
reasonably should have been aware that he or she has a condition which has been adversely
affected by factors of federal employment, such awareness is competent to start the limitation
period even though the employee does not know the precise nature of the impairment or whether
the ultimate result of such affect would be temporary or permanent. Where the employee
continues in the same employment after he or she reasonably should have been aware that he or
she has a condition, which has been adversely affected by factors of the federal employment
awareness, the time limitation begins to run on the date of the last exposure to the implicated

3

David R. Morey, 55 ECAB 642 (2004).

4

5 U.S.C. § 8122(a).

5

David R. Morey, supra note 3.

6

Id.

3

factors. The requirement to file a claim within three years is the claimant’s burden and not that
of the employing establishment.7
ANALYSIS
Appellant filed her claim for hearing loss on September 3, 2008. She indicated on her
claim form that she became aware of the condition and its relationship to her federal employment
on October 1, 1990. Appellant’s exposure to employment factors ceased in January 2002 when
she retired. Therefore, the time to file a claim began to run in January 2002. Appellant did not
file a claim until September 3, 2008, well beyond the three-year time limitation period provided
in section 8122(a) of the Act.8 Her claim would still be considered timely if her immediate
supervisor had actual knowledge of her injury within 30 days of her last exposure or if she
provided written notice.9 The record does not reflect that appellant provided written notice of
injury prior to filing the instant claim, and appellant’s supervisor advised that she had no
knowledge of a medical examination prior to appellant’s retirement.
The record establishes that appellant was given audiograms as part of an employing
establishment hearing conservation program. The Board has held that a program of annual
audiometric examinations conducted by an employing establishment in conjunction with an
employee testing program is sufficient to constructively establish actual knowledge of a hearing
loss such as to put the immediate supervisor on notice of an on-the-job injury.10 A hearing loss
identified on such a test would constitute actual knowledge on the part of the employing
establishment of a possible injury.11 In this case, however, the employing establishment
audiograms did not show an employment-related hearing loss.12 Appellant has not established
that the employing establishment had constructive knowledge of her hearing loss. Her claim was
not timely filed.13
CONCLUSION
The Board finds that appellant’s claim is barred by the applicable time limitation
provisions of the Act.

7

W.L., 59 ECAB ____ (Docket No. 07-1913, issued February 22, 2008).

8

5 U.S.C. § 8122(a).

9

Id. at § 8122(a)(1); see Ralph L. Dill, 57 ECAB 248 (2005).

10

James A. Sheppard, 55 ECAB 515 (2004); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Time,
Chapter 2.801.3a(3)(3) (March 1993).
11

Supra note 2; see Ralph L. Dill, supra note 9.

12

James W. Beavers, 57 ECAB 254 (2005).

13

As appellant’s claim is untimely, the Board need not address appellant’s arguments on appeal.

4

ORDER
IT IS HEREBY ORDERED THAT the April 29, 2009 schedule award decision of the
Office of Workers’ Compensation Programs is reversed. Appellant’s claim is barred by the time
limitation provisions of the Act.
Issued: March 22, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
LONG BEACH HEALTHCARE SYSTEM,
Long Beach, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 08-2132
Issued: March 24, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 29, 2008 appellant filed a timely appeal from a May 14, 2008 merit decision of
the Office of Workers’ Compensation Programs’ Branch of Hearings and Review denying her
occupational disease claim. Pursuant to 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 she sustained an injury in the performance
of duty.
FACTUAL HISTORY
On May 23, 2007 appellant, a 61-year-old medical supply technician, filed an
occupational disease claim (Form CA-2) for right shoulder pain. She attributed her shoulder
pain to lifting surgical trays and loaners in the performance of her federal employment.

Appellant submitted no medical evidence in support of her claim, and by letter dated
July 17, 2007, the Office notified her that the evidence submitted was insufficient to support her
claim and provided her an opportunity to further support her claim.
Appellant submitted no additional supporting evidence, and by decision dated August 17,
2007, the Office denied her claim because the evidence of record was insufficient to establish
that she sustained an injury as defined by the Federal Employees’ Compensation Act.
By letter dated September 5, 2007, appellant requested an oral hearing. A hearing was
held on March 11, 2008.
In support of her claim, appellant submitted a March 17, 2008 medical report signed by
Dr. Brian Coyne, Board-certified in family medicine, who diagnosed appellant with rotator cuff
syndrome. Dr. Coyne reported that appellant’s pain was chronic and appeared to have originated
from an overuse event over one-year prior at work. In a March 21, 2008 report, he asserted that
appellant’s condition originated at work over one-year prior and required workers’ compensation
intervention.
By decision dated May 14, 2008, the Branch of Hearings and Review affirmed the
Office’s August 17, 2007 decision. The hearing representative found that appellant failed to
establish that she sustained an injury while in the performance of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under the Act1 has the burden of proof to establish the
essential elements of her claim by the weight of the evidence,2 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.3 To establish that an
injury was sustained in the performance of duty in a claim for occupational disease, an employee
must submit: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
4

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

2

whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.5
ANALYSIS
Appellant identified lifting of surgical trays and loaners as employment factors
contributing to her injury, and the Office has accepted that she performed these duties in the
course of her employment. It is appellant’s burden to submit rationalized medical evidence
establishing a diagnosed condition causally related to the identified employment factors. The
Board finds the evidence of record insufficient to establish that she sustained an injury in the
performance of duty.
While Dr. Coyne’s March 17, 2008 medical report diagnosed appellant with rotator cuff
syndrome, he expresses no opinion on the causal relationship between this diagnosed condition
and alleged factors of appellant’s employment. Although his report states that appellant’s
chronic pain originated from an overuse event at work, the Board has consistently held that pain
is a symptom, not a compensable diagnosis.6
Similarly, Dr. Coyne’s March 21, 2008 medical note asserts that appellant’s condition
originated at work over one year prior. But this note is of little probative value as Dr. Coyne’s
opinion is unsupported by a complete history of injury7 and any explanation of the nature of the
relationship between the diagnosed condition and appellant’s specific employment factors.8
The Office informed appellant of the need to submit a physician’s opinion which
explained how the claimed condition was related to employment-related factors. However, none
of the medical evidence of record establishes this causal relationship.9
Accordingly, appellant has failed to establish that she sustained an injury in the
performance of duty.

5

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

See Robert Broome, 55 ECAB 339, 342 (2004); Ruth Seuell, 48 ECAB 188 (1996).

7

The Board has held that medical opinions based upon an incomplete history have little probative value. Vaheh
Mokhtarians, 51 ECAB 190 (1999).
8

See Victor J. Woodhams, supra note 5.

9

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms do not, in the opinion of the
Board, constitute evidence of a sufficiently substantial nature).

3

CONCLUSION
The Board finds that the Office properly concluded that appellant has failed to establish
that she sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2008 decision of the Office of
Workers’ Compensation Programs’ Branch of Hearings and Review is affirmed.
Issued: March 24, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY,
)
Fort McCoy, WI, Employer
)
___________________________________________ )
D.H., Appellant

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

Docket No. 06-1641
Issued: October 12, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 12, 2006 appellant filed a timely appeal of a May 2, 2006 nonmerit decision of
the Office of Workers’ Compensation Programs denying her request for reconsideration.
Because more than one year has elapsed between the most recent merit decision dated June 6,
2001, and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

FACTUAL HISTORY
On September 9, 1982 appellant, then a 35-year-old painter, filed an occupational disease
claim alleging that his duties as a painter contributed to his bilateral knee condition.1 The Office
accepted the claim for acceleration of avascular necrosis of the right hip, with bipolar end
prosthetic replacement of the right hip in 1983 and revision of the total hip in 1988, depressive
disorder and neurotic depression.2 Appellant stopped work on November 19, 1982 and received
appropriate compensation. On October 11, 1991 the Office granted a schedule award for 45
percent impairment of the right leg.
By letter dated July 3, 1999, appellant requested an increased schedule award and
expansion of his claim to include a low back condition. In a May 27, 1999 report,
Dr. Michael R. Treister, a Board-certified orthopedic surgeon, found that appellant had “almost
no voluntary motion and almost no passive motion of the hip.” He noted that appellant “has long
had problems with the lower back” which was “directly related to his hip problem” and opined
that appellant would require revisions to his total hip arthroplasty and had a greater impairment
than he received. Dr. Treister opined that appellant was totally disabled.
On October 15, 1999 Dr. R.H.N. Fielden, a Board-certified orthopedic surgeon and a
second opinion physician, noted that appellant’s “examination was difficult because of his
grossly exaggerated type of response patterns.” He advised that appellant’s avascular necrosis
was not aggravated by work as it was a progressive disorder and would have continued
regardless of appellant’s work. Dr. Fielden indicated that he could not fully assess if appellant
had other back conditions because appellant could not perform the simplest of maneuvers despite
no specific abnormality. He indicated that appellant had one objective finding, one leg was
longer, and opined that this had contributed in some degree to his hip and groin discomfort.
Dr. Fielden opined that appellant’s back complaints were not related to his hip condition and that
the only special assist item that would be due to his hip replacement would be a raised toilet seat.
He noted that, based on the total hip replacement, appellant had no limitations on excessive
walking and climbing.
In a February 15, 2000 decision, the Office denied an increased schedule award and
denied appellant’s request to expand the claim to include a consequential back condition. The
Office also denied reimbursement for out of pocket expenses for housing modifications, with the
exception of an elevated toilet seat. Appellant subsequently requested reconsideration. In an
August 16, 2000 decision, the Office denied modification of its February 15, 2000 decision.
Appellant requested reconsideration and submitted a December 7, 2000 report from Dr. Treister
who opined that appellant was “status quo” with regard to his right hip. Dr. Treister opined that
appellant’s need for a chair lift was unequivocally related to his hip problem and was a necessity
for his activities of daily living. In a June 6, 2001 decision, the Office denied modification of its
1

Appellant has several nonwork-related conditions such as lumbar degenerative disc disease, obesity, depression,
alcohol abuse, chronic sinusitis and allergic rhinitis. He also had injuries from nonwork-related automobile
accidents in 1982, 1983 and 1984.
2

Appellant has other work-related injuries that include contusions to his left elbow, head, shoulder and right foot
in claims that are closed and retired.

2

prior decisions. The Office also found that the evidence did not establish the need for requested
support grab bars and a stairway power lift due to residuals of the accepted right hip condition.
In a January 8, 2004 letter, addressed to appellant’s representative, the Office indicated
that appellant’s claim for a consequential back condition was formally denied by decision dated
February 15, 2000. The Office also noted that additional medical development was needed to
address appellant’s claim that he now had a cervical spine condition as a result of his hip injury,
and that a formal decision would be issued.
On January 8, 2004 the Office requested that appellant’s treating physician, Dr. Janet E.
Whirlow, a Board-certified orthopedic surgeon, provided additional information regarding
appellant’s conditions. On January 27, 2004 the letter to Dr. Whirlow was returned as
undeliverable.
On January 28, 2004 appellant requested reconsideration. He alleged that his neck and
back conditions were connected to his hip injury.
On February 9, 2004 the Office referred appellant to Dr. Paul S. Drinkwater, a Boardcertified physiatrist for a second opinion. In a March 4, 2004 report, Dr. Drinkwater responded
to Office questions and opined that appellant did not sustain a consequential neck condition that
was directly the result of his accepted injuries and found that appellant was not capable of
working. He stated that both work-related and nonwork-related factors prevented appellant from
working. Dr. Drinkwater opined that appellant’s low back condition was “at least partially
related in my opinion to his hip.” On March 25, 2004 the Office requested that Dr. Drinkwater
clarify whether appellant could work part time or participate in vocational rehabilitation. On
April 6, 2004 Dr. Drinkwater advised that appellant could work one or two hours per day.
By decision dated March 26, 2004, the Office denied appellant’s request for
reconsideration because it was not timely filed and failed to present clear evidence of error. On
April 12, 2004 appellant requested reconsideration. He alleged that the Office erred in referring
him to Drs. Fielden and Drinkwater.
By decision dated June 23, 2004, the Office denied appellant’s claim for reconsideration
for the reason that it was not timely filed and failed to present clear evidence of error. The
Office addressed the second opinion report of Dr. Drinkwater and appellant’s arguments related
to his examination with the physician.
On January 7, 2005 appellant requested reconsideration. He asserted that the Office did
not timely provide him with Dr. Drinkwater’s report, the Office withheld and covered up
information to his claim and the Office was biased against him.
By decision dated March 8, 2005, the Office denied appellant’s request for
reconsideration for the reason that it was not timely filed and failed to present clear evidence of
error. The Office also noted that there was no evidence on file to support that the Office erred
with respect to the development pursued in his claim, and noted that Dr. Drinkwater provided
appropriate information regarding his work capabilities. By letter dated March 15, 2005, the

3

Office advised appellant that, based upon the report of Dr. Drinkwater, he continued to be
entitled to the same level of benefits that he was currently receiving.
In a September 30, 2005 letter, appellant reiterated previous contentions about his claim.
In a letter dated October 25, 2005, the Office advised appellant that his only avenue of appeal
related to the March 8, 2005 decision was an appeal to the Board.
On April 18, 2006 appellant requested reconsideration and generally asserted that the
Office erred developing his claim. The Office also received copies of previously received
medical reports and several new reports from Dr. Treister. In a July 17, 2005 report, Dr. Treister
noted that it was highly likely that appellant would require another revision in the future to his
total right hip arthroplasty and that he was totally disabled. The Office also received several
reports from Dr. Whirlow which included an October 20, 2004 report in which she noted that
appellant had no change in comparison to 2002 and that his left hip had moderate arthrosis. The
Office received several reports from Dr. Jennifer Kalmer, a Board-certified physiatrist. These
included a disability certificate diagnosing low back pain, lumbar stenosis, lumbar and
degenerative disc disease and chronic neck pain. In reports dated August 16, November 21,
2005 and February 20, 2006, Dr. Kalmer diagnosed avascular necrosis of the right hip, status
post revisions times two with chronic pain, cervical and spinal stenosis with degenerative disc
disease, left shoulder impingement with evidence of a labral tear, chronic myofascial pain and
hypertension which was stable. The Office received a February 11, 2005 functional capacity
evaluation performed by a physical therapist and a June 23, 2005 letter from appellant requesting
that the Office review Dr. Treister’s treatment notes.
In a decision dated May 2, 2006, the Office denied appellant’s request for reconsideration
for the reason that it was not timely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act3 vests the Office 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.”4
The Office’s imposition of a one-year time limitation within which to file an application
for review as part of the requirements for obtaining a merit review does not constitute an abuse
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8128(a).

4

of discretionary authority granted the Office under section 8128(a).5 This section does not
mandate that the Office review a final decision simply upon request by a claimant.
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a). Section 10.607(a) of the implementing regulation
provides that an application for reconsideration must be sent within one year of the date of the
Office’s decision for which review is sought.6 Section 10.607(b) states that the Office will
consider an untimely application for reconsideration only if it demonstrates clear evidence of
error by the Office in its most recent merit decision. The reconsideration request must establish
that the Office’s decision was, on its face, erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that 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. Evidence that does not raise a substantial
question concerning the correctness of the Office’s decision is insufficient to establish clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by the Office 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 the Office.8 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.9
ANALYSIS
In a February 15, 2000 decision, the Office denied appellant’s claim for an increased
schedule award and expansion of his claim for a consequential back condition. The Office also
denied reimbursement for out of pocket expenses for housing modifications, with the exception
of an elevated toilet seat. The Office denied modification of its February 15, 2000 decision on
August 16, 2000 and June 6, 2001.
However, following issuance of the June 6, 2001 decision and after appellant’s
January 28, 2004 reconsideration request, the Office received additional medical evidence into
the record and further developed the claim by referring appellant to Dr. Drinkwater for a second
5

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

6

20 C.F.R. § 10.607(a).

7

20 C.F.R. § 10.607(b).

8

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

9

Id.

5

opinion. The Office’s referral to Dr. Drinkwater occurred after the Office unsuccessfully sought
further opinion from appellant’s physician, Dr. Whirlow, regarding appellant’s condition.
Dr. Drinkwater’s March 4, 2004 report found that appellant did not sustain a consequential neck
condition due to his accepted injuries, that appellant was not capable of working and that other
factors prevented appellant from working. He opined that the factors which prevented appellant
from working included his “low back condition, which is at least partially related in my opinion
to his hip,” his neck condition, psychological status and “the fact that this gentleman has not
worked since his original hip injury.…” In response to the Office’s March 25, 2004 request for
clarification, Dr. Drinkwater advised that appellant could work one to two hours per day.
In referring appellant to Dr. Drinkwater, the Office proceeded to exercise its discretionary
authority under 5 U.S.C. § 8128. This case is similar to David F. Garner,10 in which the Board
found that, after reopening the merits of the employee’s claim for further development, the
Office abused its discretion in denying reconsideration under the clear evidence of error
standard. Rather, the Board noted that the Office should have conducted a merit review of the
claim. Following appellant’s January 28, 2004 reconsideration request, the Office, as noted,
advised appellant that it was further developing his claim by his referral to Dr. Drinkwater for a
second opinion examination and opinion on one of the relevant points at issue, i.e., on the issue
of appellant’s continuing entitlement to benefits, which included whether there were any
objective findings to support work-related acceleration of avascular necrosis of the right hip,
whether appellant’s subsequent surgery continued to be symptomatic and causally related to his
work injury of September 9, 1982 and whether appellant had continued residuals of the workrelated injuries. As the record currently stands, the Office has not issued a merit decision
evaluating the evidence it obtained from Dr. Drinkwater, the second opinion physician, or the
additional medical evidence submitted by appellant during the development of his claim after
June 6, 2001.
Exercising its discretionary authority, the Office solicited and received relevant pertinent
evidence not previously considered. Therefore, the Office must conduct an appropriate merit
review of the evidence under section 8128(a).11 Following such a review and any development
which the Office deems necessary, the Office shall issue an appropriate merit decision.
CONCLUSION
The Board finds that the Office improperly found that appellant’s reconsideration
requests were untimely filed and did not present clear evidence of error.

10

43 ECAB 459 (1992); see also Joyce A. Fasanello, 49 ECAB 490 (1998).

11

See id.

6

ORDER
IT IS HEREBY ORDERED THAT the May 2, 2006 decision of the Office of Workers’
Compensation Programs is reversed and the case remanded for further proceedings consistent
with this decision.
Issued: October 12, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7