United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 10-1782
Issued: March 1, 2011

Case Submitted on the Record

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

JURISDICTION
On June 23, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 21, 2010 nonmerit decision denying her request for a hearing.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this decision.
Because more than 180 days elapsed from the most recent merit decision of June 5, 2009 to the
filing of this appeal, the Board lacks jurisdiction to review the merits of this case.1
ISSUE
The issue is whether the Office properly denied appellant’s request for a hearing under
5 U.S.C. § 8124(b).

1

For final adverse decisions issued on or after November 19, 2008, a claimant has 180 days to file an appeal with
the Board. See 20 C.F.R. § 501.3(e) (2009).

FACTUAL HISTORY
On August 21, 2008 appellant, then a 57-year-old painter, filed a traumatic injury claim
for her back, right shoulder and right lower extremity injuries.2 The Office accepted the claim
for sprains of the lumbar back, right shoulder and upper arm, contusions of the right knee and
ankle and sprain of the right knee medial collateral ligaments. Appellant received appropriate
medical and compensation benefits.
By decision dated June 5, 2009, the Office terminated appellant’s compensation and
medical benefits effective June 6, 2009 on the grounds that her accepted conditions had resolved.
On June 10, 2009 appellant requested an oral hearing before an Office hearing
representative. By letter dated August 20, 2009, the Office notified appellant that an oral hearing
would be held in her case on October 1, 2009.
In a letter dated September 3, 2009, appellant withdrew her request for an oral hearing.
She stated: “I no longer want to appeal this claim. I request cancellation.”
On September 9, 2009 appellant submitted a notice of recurrence as of
September 4, 2009. She stated that she had been separated from her job due to her inability to
perform the duties of employment.
In a letter dated September 30, 2009, the Office informed appellant that it had received
her timely request for a hearing, as well as her petition to withdraw the hearing request. The
Office stated: “This is to notify you that we have accepted your request for the withdrawal of the
hearing.”
In a letter dated November 2, 2009, appellant requested a status report on her recurrence
claim, noting that she required medical treatment for her back condition. By letter dated
March 2, 2010, the Office informed appellant that it could not consider a recurrence claim on a
terminated case.3
On April 30, 2010 appellant requested an oral hearing. In a decision dated May 21, 2010,
the Office denied appellant’s request for a hearing as untimely. It noted that although appellant
was not entitled to a hearing as a matter of right, it had exercised its discretion to consider her
request and determined that the issue in the case could be equally well addressed in a request for
reconsideration.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act dealing with a
claimant’s entitlement to a hearing before an Office hearing representative states that “[b]efore
review under section 8128(a) of this title, a claimant for compensation not satisfied with a
2

The Office accepted appellant’s claim for bilateral knee conditions under File No. xxxxxx891. In April 2009,
appellant received a schedule award for 23 percent impairment of the right lower extremity.
3

This letter response was not a formal, final decision of the Office.

2

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.”4 The
Board has noted that section 8124(b)(1) “is unequivocal in setting forth the limitation in requests
for hearings....”5
ANALYSIS
The Board finds that the Office properly denied appellant’s request for a hearing.
Pursuant to section 8124(b)(1) of the Act, appellant was entitled to a hearing upon her
request within 30 days after the date of the issuance of the Office’s June 5, 2009 termination
decision.6 On June 10, 2009 she made a timely request for an oral hearing. After the Office
scheduled the requested hearing, appellant withdrew her request on September 3, 2009. On
September 9, 2009 she sought alternative relief by filing a recurrence claim. After receiving
notice from the Office on March 2, 2010 that her recurrence claim would not be considered, on
April 30, 2010 appellant filed another request for an oral hearing. As the April 30, 2010 request
was made more than 30 days after the issuance of the June 5, 2009 decision, it was untimely.
Therefore, appellant is not entitled to a hearing as a matter of right.
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 it must exercise this discretionary authority in deciding whether to grant a hearing.
Its procedures, which require it to exercise its discretion to grant or deny a hearing when a
hearing request is untimely or made after reconsideration under section 8128(a), are a proper
interpretation of the Act and Board precedent. The Office exercised its discretion in this case
and found that appellant’s right to further proceedings could be equally well addressed by
requesting reconsideration. As the only limitation on its authority is reasonableness, abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deductions from known
facts.7 There is no evidence that the Office abused its discretion in denying appellant’s request
for a hearing under these circumstances.
On appeal, appellant contends that the accepted conditions have not resolved. She
requests reconsideration by the Board and a new medical evaluation. As noted, the Board does
not have jurisdiction over the merits of this case and therefore will not address appellant’s
arguments.

4

5 U.S.C. § 8124(b)(1).

5

See André Thyratron, 54 ECAB 257 (2002). See also Ella M. Garner, 36 ECAB 238 (1984); Charles E.
Varrick, 33 ECAB 1746 (1982).
6

See supra note 4 and accompanying text.

7

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

3

CONCLUSION
The Board finds that the Office properly denied appellant’s request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 21, 2010 is affirmed.
Issued: March 1, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATURAL RESOURCES CONSERVATION
SERVICE, Washington, DC, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0858
Issued: December 6, 2021

Case Submitted on the Record

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

On May 19, 2021 appellant, through counsel, filed a timely appeal from an April 12, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 The Clerk of the
Appellate Board docketed the appeal as No. 21-0858.
On April 16, 2010 appellant, then a 52-year-old administrative assistant, filed a traumatic
injury claim (Form CA-1) alleging on that date she broke her left wrist and injured her back when
her desk chair slipped from under her causing her to fall while in the performance of duty. She
stopped work on March 19, 2010. On the reverse of the claim form, the employing establishment
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

The Board notes that, following the April 12, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

indicated that appellant was enrolled in the Civil Service Retirement System (CSRS). On May 24,
2010 OWCP accepted appellant’s claim for closed fracture of the lower end of the left radius and
ulna.
Beginning on May 17, 2010 appellant filed a series of claims for compensation (Form
CA-7) for disability from work commencing May 2010. On the reverse side of the claim forms,
the employing establishment indicated that she was enrolled in the Federal Employees Retirement
System (FERS) retirement plan. In a July 22, 2010 letter, OWCP authorized Federal Employees’
Compensation Act3 (FECA) wage-loss compensation for total disability on the periodic rolls,
effective July 4, 2010. Appellant returned to full-time, light-duty work on April 4, 2011 and to
full-duty work on July 18, 2011. Appellant stopped work again and, on March 29, 2012 OWCP
again authorized FECA wage-loss compensation for total disability on the periodic rolls, effective
March 24, 2012.
On December 2, 2020 OWCP issued a preliminary overpayment determination, finding
that appellant received an overpayment of compensation in the amount of $ 61,558.36. It explained
that the overpayment occurred because her Social Security Administration (SSA) age -related
retirement benefits that she received from February 1, 2012 through October 10, 2020, were
partially based on credits earned while working for the Federal Government, and that this portion
of her SSA benefit constituted a prohibited dual benefits for which she was not at fault. OWCP
requested that she complete an overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documentation to determine a reasonable repayment schedule and advised
that she could request waiver of recovery. It further requested that appellant provide suppo rting
financial documentation, including copies of income tax returns, bank account statements, bills,
pay slips, and any other records to support income and expenses. Additionally, OWCP notified
her that within 30 days of the date of the letter, she could request a final decision based on the
written record or a prerecoupment hearing.
On December 17, 2020 appellant requested a prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review and further requested waiver of the
overpayment. The hearing was held on February 17, 2021.
By decision dated April 12, 2021, OWCP’s hearing representative found that appellant had
received an overpayment of compensation in the amount of $61,558.36 for the period February 1,
2021 through October 10, 2020 because it had failed to offset her compensation payments by the
portion of her SSA age-related retirement benefits that were attributable to federal service. He
found appellant without fault in the creation of the overpayment, but denied waiver of recovery
because the evidence of record was insufficient to establish that recovery of the overpayment
would defeat the purpose of FECA or would be against equity and good conscience. OWCP’s
hearing representative further found that there was no evidence that appellant gave up a valuable
right or changed in position for the worse such that recovery of the overpayment would be against
equity and good conscience. He required recovery of the overpayment by deducting $675.00 from
appellant’s continuing compensation payments every 28 days.
The issues on appeal before the Board relate to OWCP’s finding of an overpayment of
wage-loss compensation benefits due to appellant’s alleged concurrent receipt of FECA wage-loss
3

5 U.S.C. § 8101 et seq.

2

compensation and SSA age-related retirement benefits without an appropriate offset for benefits
attributable to FERS.
OWCP’s procedures provide that an overpayment occurs when FECA compensation is not
reduced by the FERS/FECA offset amount. Since SSA will not report an offset amo unt until after
SSA benefits are received, an overpayment will almost always occur and will need to be calculated
for each period in which the offset amount was not withheld from compensation. 4 The offset
provision of 5 U.S.C. § 8116(d)(2) and applicable regulations apply to SSA age-related retirement
benefits that are attributable to federal service. 5 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA age-related retirement benefits because
the portion of the SSA benefit earned as a federal employee is part of the FERS retirement package,
and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual benefit. 6
In identifying the fact and amount of an overpayment of compensatio n following a claimant’s
receipt of age-related SSA retirement benefits, the Board has observed that OWCP uses a FERS
Offset Calculation Worksheet. 7 This calculation worksheet is sent to SSA and the completed form
is returned to OWCP setting forth purported SSA calculations as to the effective date and rate of
SSA benefits without FERS and the effective date and rate of SSA benefits with FERS. 8 Following
receipt of the purported SSA calculations, a preliminary determination of overpayment is issued if
a prohibited dual benefit was received.9
The Board has observed, however, that not all federal employees are enrolled in FERS.
Some FECA claimants are enrolled in another retirement program, such as the CSRS. Other
federal employees are not eligible to be enrolled in a federal retirement program. Therefore,
OWCP’s procedures with regard to requesting offset information are not applicable to all recipients
of FECA compensation and SSA age-related retirement benefits. Thus, the information solicited
on the FERS Offset Calculation Worksheet that OWCP sends to SSA is not applicable to nonFERS claimants and does not establish either the fact or amount of an overpayment.
Herein, the evidence of record contains conflicting evidence as to which retirement system
was applicable to appellant. The Board therefore finds that the April 12, 2021 decision must be
reversed.

4

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment,
Chapter 6.200.1(h) (September 2020).
5

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

6

FECA Bulletin No. 97-09 (February 3, 1997); C.T., Docket No. 21-0153 (issued July 21, 2021).

7

Id.

8

Id.

9

C.T., supra note 6.

3

IT IS HEREBY ORDERED THAT the April 12, 2021 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: December 6, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Columbus, OH, Employer
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__________________________________________ )
D.A., Appellant

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

Docket No. 11-1645
Issued: February 22, 2012

Case Submitted on the Record

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

JURISDICTION
On July 6, 2011 appellant, through his attorney, filed an appeal of an April 28, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) affirming the denial of his
claim for a left hip condition and disability after May 18, 2010. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his left hip
condition and disability after May 18, 2010 was causally related to the August 24, 2009 accepted
work injury.
FACTUAL HISTORY
On August 31, 2009 appellant, then a 46-year-old city carrier, filed a traumatic injury
claim alleging that on August 24, 2009 he was bitten by a pit bull on the left thigh while
1

5 U.S.C. §§ 8101-8193.

working. He continued working his normal duties and received initial medical care on
August 24 and 26, 2009.
Appellant obtained further medical care beginning early
December 2009 and worked with restrictions after January 2010. In a February 10, 2010 letter,
OWCP accepted the claim for dog bites to the left upper thigh and right shin. On April 14, 2010
it accepted left thigh sprain, left knee sprain and trochanteric bursitis of the right thigh.
Appellant stopped work on or about May 18, 2010.
In an April 16, 2010 report, Dr. Ismail Nabeel, a Board-certified internist, stated that
appellant presented for evaluation of an injury after a dog bite. Appellant had an underlying
chronic condition as well as recently diagnosed avascular necrosis (AVN) of the hip, which was
a primary condition. Dr. Nabeel stated that appellant was improving with regard to the workrelated injuries sustained. Appellant had a knee and thigh sprains, but these conditions were
improving. The major problem was from the bilateral AVN of the hip, worse on the left.
Dr. Nabeel advised appellant to follow up with his primary care physician for restrictions and
stated that appellant’s disability was stemming from his primary care condition. In the
assessment portion of the report, he stated that, for the right leg, there was improved trochanteric
bursitis. For the left thigh sprain, pain was coming from AVN of the left hip and left knee
sprain. Dr. Nabeel opined that the underlying chronic conditions as well as the AVN of the hip
bilaterally were appellant’s primary condition and not particularly related to work. He diagnosed
right leg contusion, resolved trochanteric bursitis, resolved left thigh sprain/strain and left knee
sprain/strain. Dr. Nabeel checked a box on a form advising that these conditions were
aggravated by appellant’s employment.
On May 6 and 19, 2010 appellant advised OWCP that he was going to have a left hip
replacement and believed it was related to the August 24, 2009 work injury. He was advised of
the factual and medical information needed to establish that his left hip necrosis condition was
related to the August 24, 2009 work injury.
In a May 19, 2010 letter, OWCP advised appellant that none of the accepted conditions
supported surgery for left hip necrosis and no physician had requested surgery for any of the
allowed conditions. Appellant was advised to submit further medical opinion to establish his
bilateral hip necrosis was caused, accelerated, aggravated or precipitated by the August 24, 2009
injury.
On May 24, 2010 appellant advised OWCP that his physician would not support that the
left hip condition was related to the dog bite injury. He submitted x-rays of the left hip dated
May 20, 2010, of both hips dated May 3, 2010 and of the pelvis dated May 20 and 24, 2010.
In a May 26, 2010 report, Dr. Thomas Scharschmidt, a Board-certified orthopedic
surgeon, stated that appellant had AVN of the femoral head which became acutely worse after a
fall the prior August. Appellant was seen in May 2010 and Dr. Scharschmidt diagnosed AVN
with subchondral collapse, for which appellant underwent a total hip replacement in May 2010.
As his pain became acutely worse after his accident, it was feasible that the fall caused an
exacerbation of the preexisting AVN or possibly the subchondral collapse leading to surgery. In
a July 12, 2010 report, Dr. Scharschmidt opined that the AVN with collapse of femoral head
requiring total hip replacement was caused or aggravated by employment activity as appellant’s
“pain acutely worsened after dog attack.” He noted that appellant was totally disabled from
May 19 until July 14, 2010 but could return to duties on July 15, 2010 with restrictions.
2

In a June 15, 2010 report, Dr. Nabeel indicated that the work-related conditions for which
appellant was treated from December 21, 2009 through April 16, 2010 were: contusion of the
right leg; trochanteric bursitis of the right leg; left thigh sprain/strain; and left knee sprain/strain.
He stated that the AVN of the left hip was not related to the August 24, 2009 work injury. In
June 23, 2010 form reports, Dr. Nabeel did not list a hip condition as being caused or aggravated
by employment activity. In a June 23, 2010 report, he noted that appellant had Crohn’s disease
and underwent left total hip arthroplasty on May 20, 2010. He addressed appellant’s progress
following surgery and assessed improved trochanteric bursitis, left thigh sprain and left knee
sprain. He noted that appellant was being treated for AVN of the left hip status post surgery and
stated that it was a primary condition.
In an August 18, 2010 letter, OWCP provided Dr. Scharschmidt with a copy of a
statement of accepted facts and the medical record and requested that he provide a reasoned
opinion addressing whether appellant’s left hip condition was causally related to the August 24,
2009 injury. Dr. Scharschmidt was accorded 30 days to respond. In another August 18, 2010
letter, OWCP advised appellant’s attorney that it requested that the physician provide a reasoned
medical opinion on causal relation.
OWCP received additional diagnostic testing and a claim for compensation for wage loss
for the period September 11 to 24, 2010.
By decision dated October 4, 2010, OWCP denied appellant’s left hip condition and
wage loss beginning on or about May 18, 2010. It found insufficient medical opinion, based on
an accurate history, to establish the left hip condition was caused or aggravated by the
August 24, 2009 injury.
On October 11, 2010 appellant, through his attorney, requested a telephonic hearing,
which was held on February 7, 2011. He testified that, prior to the August 24, 2009 work
incident, he did not have any problems with his left hip but they developed after that incident.
Appellant submitted additional evidence from Dr. Scharschmidt and Dr. Thomas J. Ellis,
an orthopedic surgeon and associate of Dr. Scharschmidt, dated May 3 to October 3, 2010.2 On
May 3, 2010 Dr. Ellis noted a history of left hip pain that intensified when appellant had a fall
after a dog attack. He diagnosed bilateral hip pain and AVN. In a July 20, 2010 report,
Dr. Scharschmidt released appellant to work without restrictions effective immediately following
the left total hip replacement of May 20, 2010. In reports dated September 1, 2010 and July 20,
2011, he stated that appellant’s left hip surgery was secondary to left hip AVN and was caused or
aggravated by the work injury. Dr. Scharschmidt explained that appellant’s pain became acutely
worse after the work injury and that it was feasible that the work injury potentially exacerbated
the preexisting AVN and subchondral collapse leading to the need for surgery.
By decision dated April 28, 2011, an OWCP hearing representative affirmed the prior
decision.

2

The record reflects that, in a June 27, 2011 letter, OWCP again provided Dr. Scharschmidt with a statement of
accepted facts and the medical record and requested that he provide a rationalized medical opinion as to whether
appellant continues to suffer from active residuals of the work-related conditions.

3

LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.3 A claimant seeking benefits under FECA
has the burden of proof to establish the essential elements of his claim by the weight of the
evidence,4 including that he sustained an injury in the performance of duty and that any specific
condition or disability for work for which he claims compensation is causally related to that
employment injury.5
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence. The claimant must submit a rationalized medical opinion that supports a
causal connection between his claimed condition and the employment injury. The medical
opinion must be based on a complete factual and medical background with an accurate history of
the claimant’s employment injury, must explain from a medical perspective how the claimed
condition is related to the injury.6
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent, intervening cause attributable to the employee’s own intentional conduct.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s condition surfaced during a period of employment nor his
belief that his condition was aggravated by his employment is sufficient to establish causal
relationship.8 The mere fact that work activities may produce symptoms revelatory of an
underlying condition does not raise an inference of an employment relation. Such a relationship
must be shown by rationalized medical evidence of a causal relation based upon a specific and
accurate history of employment conditions which are alleged to have caused or exacerbated a
disabling condition.9
ANALYSIS
Appellant attributed his left hip AVN condition and disability beginning May 18, 2010 to
the accepted dog bite injury of August 24, 2009. He has the burden of proof to establish a causal
connection through rationalized medical opinion evidence.

3

5 U.S.C. § 8102(a).

4

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

5

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

7

John R. Knox, 42 ECAB 193 (1990); Lee A. Holle, 7 ECAB 448 (1955).

8

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

9

Patricia Bolleter, 40 ECAB 373 (1988).

4

Appellant came under the care of Dr. Nabeel who noted that he had an underlying
chronic condition and was recently diagnosed with bilateral AVN of the hip. On April 16, 2010
Dr. Nabeel stated that the underlying chronic condition as well as the bilateral AVN of the hips
were not related to the accepted work injury. In a June 15, 2010 report, he listed the job-related
conditions stemming from the August 24, 2009 work injury and specifically stated that the AVN
of the left hip was not related to the August 24, 2009 work injury. Dr. Nabeel’s reports do not
support that appellant’s left hip AVN was caused or contributed to by his accepted injury.
Appellant also came under the care of Dr. Scharschmidt and underwent a left total hip
replacement. In a May 26, 2010 report, Dr. Scharschmidt noted that appellant had AVN of the
femoral head which became acutely worse after suffering a fall in August 2009. He did not
specifically describe the dog bite incident. Dr. Scharschmidt explained that, as appellant’s pain
became acutely worse after his accident, it was feasible that the fall exacerbated the preexisting
AVN or possibly the subchondral collapse leading to surgery. The opinion of Dr. Scharschmidt
on causal relationship is speculative and not well rationalized. While the medical opinion of a
physician supporting causal relationship does not have to reduce the cause or etiology of a
disease or condition to an absolute certainty, neither can such opinion be speculative or
equivocal. The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.10 Dr. Scharschmidt did not adequately explain how the August 24,
2009 work-related incident caused or aggravated appellant’s left hip necrosis. The record
reflects that appellant entered into his care approximately a year after the accepted injury.
Dr. Nabeel previously indicated that appellant’s left hip condition was not work related but was a
chronic underlying condition. Even though OWCP provided Dr. Scharschmidt a statement of
accepted facts and the medical file, he failed to provide a narrative report with medical rationale
explaining how the August 24, 2009 work-related incident caused or aggravated appellant’s left
hip necrosis and claimed disability. Dr. Scharschmidt’s reports are insufficient to establish
appellant’s claim.
While the record contains treatment reports from Dr. Ellis, such reports do not
specifically address how the August 24, 2009 work injury caused or aggravated appellant’s left
hip necrosis condition and work stoppage beginning May 18, 2010. The evidence from Dr. Ellis
is insufficient to establish appellant’s claim as he fails to explain the causal relationship between
appellant’s accepted employment injury and his claimed left hip condition and disability for the
claimed period. The diagnostic reports of record are insufficient to establish the claim as they do
not address causal relationship.
Appellant did not submit sufficient medical evidence to establish that his left hip AVN
condition was caused by the August 24, 2009 injury. He did not meet his burden of proof.11 On
appeal appellant’s attorney argues that OWCP’s decision is contrary to fact and law. For the
reasons stated, the Board finds that appellant failed to meet his burden of proof.

10

Patricia J. Glenn, 53 ECAB 159 (2001).

11

Gary J. Watling, 52 ECAB 278 (2001).

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish his claim.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated April 28, 2011 is affirmed.
Issued: February 22, 2012
Washington, DC

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

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

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

6


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

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)

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

Docket No. 10-913
Issued: December 2, 2010

Case Submitted on the Record

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

JURISDICTION
On February 1, 2010 appellant, through her representative, filed a timely appeal of
August 18 and December 3, 2009 merit decisions 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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her right elbow
tendinitis, neck or right shoulder conditions are causally related to factors of her federal
employment.

FACTUAL HISTORY
On February 5, 2009 appellant, then a 40-year-old mail clerk, filed a compensation claim
for a traumatic injury that occurred on February 4, 2009. She was walking down the stairs when
she suddenly fell and landed on her right elbow and side.1
Appellant submitted medical treatment notes from Dr. Daniel Yoo, an orthopedic
surgeon. In a February 6, 2009 report, Dr. Yoo noted that appellant had recently injured her
right elbow due to a fall and diagnosed right elbow flexor pronator tendinitis.2 He noted that she
continued to have right shoulder pain and numbness with tingling in her fingers and prescribed
physical therapy. In a March 13, 2009 report, Dr. Yoo stated that appellant’s right elbow was
still painful but examination revealed full extension and flexion on range of motion. In an
April 27, 2009 report, he noted that she continued to complain of pain in her right elbow but his
examination showed good overall alignment and range of motion. Dr. Yoo recommended
obtaining a magnetic resonance imaging (MRI) scan.
Appellant also submitted medical reports from Dr. Scott B. Neff, a Board-certified
orthopedic surgeon. In a March 2, 2009 medical report, Dr. Neff provided a diagnosis of
impingement syndrome and scapulothoracic myofascial syndrome in the right shoulder which he
attributed to repetitive use of the right shoulder through overhead lifting and throwing of heavy
bags. In an April 27, 2009 medical report, he stated that appellant’s right shoulder continued to
bother her and that an MRI scan revealed a cyst with no obvious labral tear. Neither report
provided a history of the February 4, 2009 incident at work.
In a May 28, 2009 medical report, Dr. M.S. Iqbal, a Board-certified anesthesiologist,
noted appellant’s complaint regarding pain in her right elbow and diagnosed myofascial pain
syndrome of the right scapular muscle, rhomboids and levator scapulae.
Appellant also submitted emergency room discharge papers from Mercy Medical Center
dated February 5, 2009, a series of work status reports dated January 9 to July 6, 2009 which
restricted the work she was capable of performing and physical therapy notes from February 12
to July 6, 2009.
In a July 16, 2009 letter, the Office advised appellant that she had submitted insufficient
evidence to support her claim for compensation and requested additional medical evidence.
Appellant was asked to provide a physician’s opinion regarding whether the February 4, 2009
work incident caused her medical conditions. She was also requested to submit a medical report
from the physician who examined her after the February 4, 2009 work incident describing her
history of medical conditions, current symptoms, objective signs from a physical examination
and providing a diagnosis.

1

The record indicates that appellant has a previous occupational injury claim that was accepted for carpal tunnel
syndrome and shoulder impingement (File No. xxxxxx671).
2

Dr. Yoo noted that x-rays were obtained that were negative for fracture, dislocation or subluxation.

2

In response, appellant submitted various records signed by Dr. Yoo, including a July 6,
2009 therapy order, an August 6, 2009 work restriction order, and an August 6, 2009 letter
addressed to the Office. She also submitted physical therapy notes dated July 23 to
August 6, 2009.
In an August 18, 2009 decision, the Office denied appellant’s claim for compensation due
to traumatic injury. It accepted that on February 4, 2009 she fell and landed on her right elbow
and side; but the medical evidence was not sufficient to establish that her medical conditions
resulted from this incident.
On October 19, 2009 appellant filed a request for reconsideration of the August 18, 2009
decision. She explained that on February 4, 2009 she fell and landed on her right side, resulting
in an injury to her right elbow and aggravation of her right shoulder and neck conditions.
Appellant referred to a previous shoulder injury approved for compensation, which she claimed
was aggravated by the fall.3
In a November 16, 2009 report, Dr. Todd C. Troll, a Board-certified specialist in physical
medicine and rehabilitation, diagnosed right shoulder pain.
By decision dated December 3, 2009, the Office denied modification of the August 18,
2009 decision. It found that the medical evidence failed to provide a well-reasoned physician’s
opinion as to how appellant’s diagnosed medical conditions resulted from the February 4, 2009
incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence5
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.6 The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relation. The employee must submit
rationalized medical opinion evidence showing causal relationship based upon a specific and
accurate history of employment conditions which are alleged to have caused or exacerbated a
disabling condition7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
3

Appellant also attributed her elbow tendinitis as an occupational disease or illness due to the type of work that
she repeatedly performed.
4

5 U.S.C. §§ 8101-8193.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

G.T., id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960); Patricia Bolleter, 40 ECAB 373 (1988).

3

opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS
The Office accepted that on February 4, 2009 appellant fell down stairs, landing on her
right side. The Board finds that she failed to meet her burden of proof to establish that her elbow
tendinitis neck or right shoulder conditions were caused by the incident at work.
Appellant submitted medical chart notes from Dr. Yoo dated February 6, March 13 and
April 27, 2009. Dr. Yoo provided findings on examination of appellant’s diagnosed right elbow
flexor pronator tendinitis. He noted that she recently slipped and fell landing on her outstretched
hand but did not list the date of injury. Dr. Yoo did not provide any opinion regarding whether
this caused or aggravated appellant’s diagnosed conditions. To establish causal relationship for a
claim, appellant must provide a physician’s report which states whether the employment injury
caused or aggravated her diagnosed conditions.9 Dr. Yoo’s medical notes fail to provide a
medical opinion addressing whether the February 4, 2009 incident caused or contributed to
appellant’s medical conditions and are insufficient to satisfy her burden of proof.
Appellant also submitted medical reports from Dr. Neff dated March 2 and
April 27, 2009. Dr. Neff diagnosed impingement syndrome in her right shoulder. He did not
reference the February 4, 2009 incident, but instead attributed appellant’s right shoulder
condition to “repetitive overhead lifting, repetitive overhead use of the arm, such as while casing
mail.” Dr. Neff, however, failed to provide medical rationale explaining how the traumatic
incident accepted in this case caused or aggravated her condition. The Board has held that
medical reports not containing rationale on causal relation are of diminished probative value and
are generally insufficient to meet an employee’s burden of proof.10 Dr. Neff’s reports are not
sufficient to establish appellant’s claim.
Dr. Troll’s November 16, 2009 medical report diagnosed appellant with right shoulder
pain but did not offer an opinion regarding causal relationship to the February 4, 2009 work
incident. For this reason, his report fails to support her claim
The physical therapy notes submitted by appellant from February 18 to July 6, 2009 are
of no probative value. Section 8101(2) of the Act provides that the term “physician” includes
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law. As physical and
8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Calvin E. King, 51 ECAB 394 (2000); D.D., 57 ECAB 734, 739-40 (2006).

10

Elizabeth H. Kramm, 57 ECAB 117, 124 (2005); Jimmie H. Duckett, 52 ECAB 332, 336 (2001); Ceferino L.
Gonzales, 32 ECAB 1591 (1981).

4

occupational therapists are not physicians as defined by the Act, their opinions regarding
diagnosis and causal relationship are of no probative medical value.11
Appellant’s October 19, 2009 request for reconsideration, asserted that her elbow
tendinitis and aggravation of a neck and right shoulder injury resulted from her fall on
February 4, 2009. The Board, however, has held that the mere fact that a condition manifests
itself during a period of employment does not raise an inference that there is a causal relationship
between the two.12 Neither the fact that the condition became apparent during a period of
employment nor the belief that the condition was caused or aggravated by employment factors is
sufficient to establish causal relationship.13 Causal relationship can only be established by
reasoned medical opinion evidence, which appellant has not provided. Therefore, appellant’s
opinion that her condition was caused by the February 4, 2009 fall is not determinative.
Appellant failed to satisfy her burden of proof to provide rationalized medical evidence
establishing a causal relationship between her right elbow condition and her fall on
February 5, 2009. The Office properly denied her claim.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof establishing that her
elbow tendinitis and aggravation of a neck and right shoulder injury are causally related to her
February 4, 2009 work incident.

11

See Roy L. Humphrey, 57 ECAB 238 (2005).

12

Id. at 242.

13

Id.; see also Joe T. Williams, 44 ECAB 518, 521 (1993).

5

ORDER
IT IS HEREBY ORDERED THAT the December 3 and August 18, 2009 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 2, 2010
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, TINKER AIR FORCE
BASE, OK, Employer
__________________________________________

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Appearances:
Chris Kannady, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0445
Issued: December 12, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 16, 2016 appellant, through counsel, filed a timely appeal from a June 21,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s June 21, 2016 decision was December 18, 2016.
Because using December 20, 2016, the date the appeal was received by the Clerk of the Appellate Boards would
result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is December 16, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an occupational
disease causally related to factors of her federal employment.
FACTUAL HISTORY
On September 10, 2015 appellant, then a 52-year-old logistics management specialist,
filed an occupational disease claim (Form CA-2) alleging that she sustained respiratory tract
congestion, headaches, sinusitis, asthma, itchy skin, facial rashes, cognitive deficits, and autoimmune response/distress due to exposure to harmful substances in her workplace. She indicated
that she first became aware of her claimed condition on February 11, 2014 and first realized on
March 18, 2014 that is was caused or aggravated by her employment. Appellant did not stop
work.
In an accompanying undated statement, appellant indicated that in August 2013 she was
diagnosed with black mold toxicity by Dr. Gregg S. Govett, an attending Board-certified
otolaryngologist. She discussed the exposures at work which she believed caused this condition,
indicating that spring 2013 had been very wet and that there were several roof leaks in Building
3001 at Tinker Air Force Base, her workplace at the time. Appellant noted that there also were
leaks in the heating ventilation & air conditioning (HVAC) system, many of which were in the
general area of her work desk. There was a strong musty smell in Building 3001 and there were
black mold spores growing on the ceiling vents and some tiles. Appellant indicated that a
conference room below her work area was condemned and had an open work order for white
mold, and advised that her work area shared the same HVAC system as that conference room.
Appellant’s supervisor gave her permission to telework from home beginning September 3, 2013
and she began to recuperate and feel much better while she teleworked. Appellant indicated that,
on October 30, 2013, her supervisor ordered her to report for an appointment with the base
physician and noted that this physician wrote that she could return to duty because the vents in
her work area had been cleaned and dehumidifiers had been installed. She noted that when she
returned to work in Building 3001 in November 2013 she noticed that mold spores had already
begun to resurface on the vents in her work area. Appellant advised that she became ill again
within a couple of weeks after her return to Building 3001.
Appellant indicated that she took leave from December 9, 2013 to January 9, 2014 and
noted that, on January 13, 2014, she began working in Building 9001 at Tinker Air Force Base.
After a short time, she began to have symptoms again and, on February 11, 2014, she was moved
to Building 3. Appellant indicated that she experienced symptoms within a matter of days and
that she starting taking leave on March 18, 2014. She noted that Dr. Timothy Moser, an
attending Board-certified family practitioner and osteopath, diagnosed her with pulmonary
disease in late March 2014 and that Dr. Govett agreed with the diagnosis. Appellant indicated
3

5 U.S.C. § 8101 et seq.

2

that in April 2014 she started working in a different part of Building 3 than she had previously
worked. Even though she believed that the air quality was better in this part of Building 3, she
continued to have allergic symptoms and to experience difficulty working a full eight hours each
day.4 Appellant discussed her medical treatment and the symptoms which she believed were
related to exposure to harmful substances at work, including headaches, fever, fatigue, facial
rashes, and breathing difficulties. She indicated that on March 3, 2015 she had an air quality
evaluation at her home which showed normal results, thereby eliminating her home as the source
of her illness. Appellant advised that she previously filed a claim (OWCP File No. xxxxxx628)
regarding the same claimed occupational conditions which was denied in OWCP decisions dated
October 9, 2013 and December 24, 2014.
In a March 2, 2015 report, an industrial hygiene associate for Marshall Environmental,
Inc., indicated that a monitoring event was conducted at appellant’s home. Appellant noted that
airborne fungi samples were collected at various locations within the home, as well as along the
back wall of the home in the backyard, and that measurements were taken for carbon dioxide,
carbon monoxide, relative humidity, and temperature levels, both inside the home and in the
ambient (i.e., outdoor) environment for comparison purposes. The industrial hygiene associate
indicated that the total indoor airborne fungi concentrations and indoor surface sample
concentrations were not representative of a fungal amplification (i.e., elevated concentrations of
spores were not detected indoors). She noted that the indoor carbon dioxide, carbon monoxide,
relative humidity, and temperature levels were in accordance with recommended levels, plus or
minus several percent.
The record contains the results of an August 31, 2015 spore count examination conducted
by the private firm EMLab P&K. The test sample consisted of a one-inch square ceiling tile
from Building 3 at Tinker Air Force Base. The report listed spore counts for various types of
fungi found on the tile, including 193 spores of Cladosporium.
The medical evidence submitted included a March 25, 2014 report from Dr. Moser who
reported the findings of lung capacity testing and diagnosed appellant with fatigue, shortness of
breath, and cough.
In a December 8, 2014 report, Dr. Govett noted that it had been brought to his attention
that appellant’s environmental symptoms of fatigue, malaise, skin rashes of undetermined origin,
arthralgias, recurrent Candidiasis, and brain fog had returned. He indicated that appellant was
still suffering from mycotoxicity (with a high triothecenes level found through urinalysis) and
advised that it would be beneficial for her workplace to be tested, as it apparently was full of
mold.
In an August 17, 2015 report, Dr. Govett noted that appellant had been under his care
since 2011 and had made 26 outpatient visits for fatigue and chemical sensitivities. He advised
that urinalysis showed that she had tricothecenes mycotoxicity which contributed to her
complaints. Dr. Govett asserted that appellant had documented the existence of mold in the
buildings at Tinker Air Force Base, but that her home was found to be clean. He noted that she
4

Appellant indicated that her current supervisor allowed her to telework at home up to three days per week, but
advised that, due to the demands of her work, she felt that it was unethical to remain in a routine teleworking status.

3

reported daily headaches, dyspnea, myalgias, arthralgias, dizziness, memory loss, brain fog,
fatigue, cognitive dysfunction, and intermittent dysarthria after exposure to mold at work and
that her symptoms were exacerbated when jet fuel seeped into her work building.
In a May 20, 2015 report, Dr. John W. Ellis, an attending Board-certified occupational
medicine physician, noted that appellant reported that in 2013 she was exposed to high levels of
mold in Building 3001 at Tinker Air Force Base. He indicated that her sensitization to
environmental stimuli in her workspace at Tinker Air Force Base caused the diagnosed
conditions of rhinitis and parasinusitis of the upper respiratory tract and reactive airway disease
(asthma) of the lower respiratory tract.
In a September 24, 2015 letter, OWCP requested that appellant submit additional
evidence in support of her claim. It asked her to complete and return a factual development
questionnaire which posed various questions regarding her possible exposure to harmful
substances in the workplace and in her personal life. OWCP also requested that appellant submit
a physician’s opinion supported by a medical explanation as to how the reported work exposures
caused or aggravated a diagnosed medical condition. On September 24, 2015 it also requested
additional information from the employing establishment about appellant’s possible exposure to
harmful substances in the workplace.
Appellant submitted a September 29, 2015 response to the factual development
questionnaire sent to her by the employing establishment. She provided additional details of her
claimed exposure to harmful substances in the workplace and further described the treatment she
received for her medical conditions. Appellant also submitted photographs of her face and of
ceiling tiles/vents at her workplace. In an undated statement, a coworker indicated that she
started working in Building 3 in February 2013 and noticed a musty smell from mold and the
smell of jet fuel fumes. The coworker noted that she developed itching/burning of her eyes,
itching of her skin, and headaches.
Appellant submitted numerous treatment notes from Dr. Govett, dated between
February 24, 2014 and April 8, 2015. In an October 16, 2015 report, Dr. Govett indicated that
she suffered from chronic fatigue syndrome secondary to mycotoxicity and chemical sensitivities
acquired from mold in her worksites, including Building 3.
In a November 17, 2015 report, Dr. Ellis discussed appellant’s reported work conditions
and the symptoms of her various medical conditions. He detailed his findings upon physical
examination and diagnosed sensitization to work environment, mold toxicity, and reactive
airway disease (asthma). Dr. Ellis indicated that it was his medical opinion, based upon his
examination and review of records, that it was more probable than not that appellant’s diagnosed
conditions arose from her employment. He found that her exposure to mold, volatile organic
hydrocarbons, jet fuels, and other chemicals at Tinker Air Force Base caused her immune system
to become hyperactive and to respond to these exposures.
In a December 15, 2015 decision, OWCP denied appellant’s claim for an occupational
disease. It found that she had not established fact of injury because the medical evidence of
record was insufficient to establish that a medical condition was diagnosed in connection with
the accepted work factors.

4

On January 5, 2016 appellant requested a review of the written record with a
representative of OWCP’s Branch of Hearings and Review. She submitted a December 1, 2015
report in which Dr. Muhammad Amin, an attending Board-certified internist and pulmonologist,
reviewed the findings of pulmonary function testing and diagnosed mild persistent asthma
(uncomplicated). Dr. Amin noted that he suspected that appellant’s asthma was triggered at her
workplace, but he was not sure what the triggers were.
In a June 21, 2016 decision, OWCP’s hearing representative affirmed the December 15,
2015 decision. The hearing representative advised that a review of appellant’s prior occupational
disease claim in OWCP File No. xxxxxx628 revealed that “no evidence was received to indicate
any toxin in the environment” and noted that the prior claim was denied “on the basis of causal
relationship.”5 She asserted that cumulative medical evidence was received in connection with
the present occupational disease claim and noted, without further explanation, that this evidence
did not provide “adequate evidence to establish that the claimed illnesses would be due to the
claimant’s work environment.” The hearing representative denied appellant’s claim because she
had not established the medical portion of fact of injury and noted that appellant “has a prior
claim asserting the same conditions, but has not provided sufficient evidence to establish a
change in any diagnosed condition due to her current claim.” She indicated that OWCP might
wish to combine the files for appellant’s two occupational disease claims for future review
purposes.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that the injury was sustained while in the performance of duty as
alleged, and that any disability or specific condition for which compensation is claimed are
causally related to the employment injury.7 To establish fact of injury, an employee must submit
evidence sufficient to establish that he or she experienced a specific event, incident, or exposure
occurring at the time and place, and in the manner alleged.8 An employee must submit medical
evidence establishing that such event, incident, or exposure caused an injury.9 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.10
5

OWCP indicated that the Board affirmed this determination in a November 24, 2015 decision noting that no
evidence had been provided to establish mold in the work environment as alleged by appellant and that a medical
report of Dr. Ellis was not sufficiently well reasoned to establish causal relationship between a diagnosed condition
and factors of appellant’s federal employment.
6

Supra note 3.

7

5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

8

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

9

Id.

10

R.H., 59 ECAB 382 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

5

OWCP regulations define the term “[o]ccupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.11 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, an employee must submit the following: (1) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.12
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence.13 The opinion of the physician must be based on a complete factual
and medical background of the employee, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established employment factors.14
ANALYSIS
The Board finds that the case is not in posture for decision. Pursuant to 20 C.F.R.
§ 501.2(c)(1), the Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Decisions on claims are based on the written
record, which may include forms, reports, letters, and other evidence of various types such as
photographs, videotapes or drawings.15 Evidence may not be incorporated by reference, nor may
evidence from another claimant’s case file be used.16 Evidence contained in another of the
claimant’s case files may be used, but a copy of that evidence should be placed into the case file
being adjudicated.17 All evidence that forms the basis of a decision must be in that claimant’s
case record.18
The June 21, 2016 decision, which is the subject of the current appeal, includes
references to information associated with a prior claim of appellant, i.e., a 2013 occupational
disease claim in OWCP File No. xxxxxx628 in which she purportedly implicated many of the
same employment factors identified in the present case. The hearing representative referenced
evidence which is not part of the current file, and relied on this evidence in denying appellant’s
11

20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of
Claims, Chapter 2.800.2b (June 2011).
12

D.H., Docket No. 15-1876 (issued January 29, 2016); D.I., 59 ECAB 158 (2007); Victor J. Woodhams, 41
ECAB 345 (1989).
13

F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

14

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

15

Supra note 11 Chapter 2.800.5a (June 2011).

16

Id.

17

Id.

18

Id.

6

current claim for a work-related occupational injury. Appellant asserted that, beginning in spring
2013, the environmental conditions in Building 3001 contributed to her claimed medical
condition.19 OWCP’s hearing representative indicated that factual evidence contained in the file
for appellant’s previous occupational disease claim showed that she had not established exposure
to toxins in the workplace. The hearing representative relied on this evidence to deny appellant’s
claim, yet this evidence is not contained in the present file. She also determined that the medical
evidence appellant submitted in connection with her 2015 occupational disease claim was
cumulative of medical evidence appellant submitted in connection with her 2013 occupational
disease claim, but the hearing representative did not provide further explanation for this
determination.
Although OWCP relied on the above-referenced information in denying appellant’s claim
for a work-related occupational injury, it neglected to include the referenced information from
OWCP File No. xxxxxx628 in the current case record. Because of this oversight, the Board is
not in a position to make an informed decision regarding her claim that she sustained a workrelated occupational injury.20
As the record lacks sufficient evidence for the Board to render an informed decision, the
case shall be remanded to OWCP for further development. Upon remand OWCP shall combine
the current case file with OWCP File No. xxxxxx628.21 After it has developed the record
consistent with the above-noted directive, OWCP shall issue a de novo decision regarding
appellant’s claim for a work-related occupational condition.
CONCLUSION
The Board finds that the case is not in posture for decision.

19

Appellant indicated that, beginning in 2014, her worksites in Building 9001 and Building 3 also contributed to
her claimed work-related occupational injury.
20

See K.P., Docket No. 15-1945 (issued February 10, 2016); M.C., Docket No. 15-1706 (issued
October 22, 2015).
21

See supra notes 15 through 18.

7

ORDER
IT IS HEREBY ORDERED THAT the June 21, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: December 12, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Q., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Greensboro, NC,
Employer
__________________________________________

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

Docket No. 16-1703
Issued: March 5, 2018

Case Submitted on the Record

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

JURISDICTION
On August 23, 2016 appellant filed a timely appeal from a July 26, 2016 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 the claim.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on November 13, 2014, as alleged.
FACTUAL HISTORY
On December 23, 2015 appellant, then a 52-year-old mail processing clerk, filed a
traumatic injury claim (Form CA-1) for a torn right rotator cuff that she allegedly sustained in
1

5 U.S.C. § 8101 et seq.

the performance of duty on the morning of November 13, 2014. She attributed her right shoulder
injury to pushing, pulling, and lifting parcels and equipment. Appellant stopped work on
November 24, 2015 to undergo right shoulder surgery.
In a December 23, 2015 employing establishment injury/medical condition notification
form, appellant’s supervisor, S.A., noted a November 13, 2014 date of injury and a history of
injury as follows: “Doing regular duties (keying, processing mail, moving equipment/lifting
parcels) start having pain in right shoulder down to fingers.” The reported medical condition
was right rotator cuff tear and appellant was noted to be totally disabled.
The employing establishment controverted appellant’s entitlement to continuation of pay
(COP) and argued there was no evidence that the injury occurred within a one-day period. It also
noted that, although appellant claimed to have injured her shoulder at work on November 13,
2014, she had been receiving treatment for a right shoulder condition dating back to
September 23, 2014. The employing establishment submitted a November 17, 2015 Family and
Medical Leave Act (FMLA) request, which noted that appellant had been receiving treatment
since September 23, 2014, and was scheduled for surgery on November 24, 2015. The FMLA
request also noted that appellant received treatment on November 13, 2014 and on December 9,
2014 from Dr. Marcus V. Duda, a Board-certified orthopedic surgeon, diagnosed right shoulder
impingement.
In a December 8, 2015 report, Dr. Duda diagnosed right rotator cuff tear, and noted that
appellant was status post right shoulder arthroscopic debridement. He advised that appellant had
been totally disabled since November 24, 2015, and that her condition was employment related.
In a January 4, 2016 claim development letter, OWCP informed appellant of the type of
factual and medical evidence needed to support her claim, and requested that she submit such
evidence within 30 days. In the attached factual questionnaire, it noted that it was unclear
whether appellant sustained a traumatic injury or an occupational disease. OWCP asked that she
clarify which type of injury she was claiming.
In a January 19, 2016 statement, appellant indicated that she previously had shoulder pain
and arm numbness from lifting, reaching, pulling, pushing, and she became cautious of what she
did. She noted that she first consulted Dr. Duda on March 19, 2015. In response to why it took
her over a year to file her claim, appellant indicated that her condition had worsened. She
explained that she medicated herself and took Aleve, Tylenol, and compresses hoping her pain
would get better. Appellant also specified that she was claiming a traumatic injury.
OWCP received a January 4, 2016 attending physician’s report (Form CA-20) from
Dr. Duda. He did not specify a date of injury, but noted a history of shoulder pain and decreased
range of motion. He diagnosed right rotator cuff tear, and noted that appellant had undergone
surgery. Dr. Duda also indicated that he did not believe appellant’s condition was caused or
aggravated by an employment activity. He noted that he first examined appellant on
November 13, 2014. Dr. Duda further indicated that appellant was totally disabled beginning
November 24, 2015, and he anticipated a return to work on January 11, 2016. Additionally, he
provided a January 4, 2016 duty status report (Form CA-17).

2

On January 12, 2016 appellant accepted a full-time, limited-duty assignment as a
modified distribution clerk. She was restricted to lifting no more than 25 pounds.
In a January 14, 2016 report, Dr. Duda noted that appellant first presented with
impingement symptoms of her shoulder on March 19, 2015. He advised that since then he saw
her on June 18, October 15, November 10, and December 8, 2015, and January 4, 2016.
Dr. Duda explained that on her initial presentation, she had impingement symptoms of her right
shoulder. Appellant advised Dr. Duda that her symptoms started with work-related activities and
she was given work restrictions for her shoulder. Dr. Duba noted that on June 18, 2015 appellant
underwent a subacromial injection, which provided temporary relief. However, on October 15,
2015 he noted that she still had pain on testing and he recommended a magnetic resonance
imaging (MRI) scan to rule out a rotator cuff tear. Dr. Duda treated appellant on November 10,
2015 and reviewed the MRI scan, which revealed subacromial bursitis with severe supraspinatus
and infraspinatus tendinopathy, but no full-thickness rotator cuff tear. He explained that due to
her pain with activities of daily living, appellant decided to proceed with arthroscopic
intervention, which was performed on November 24, 2015. Dr. Duda indicated that arthroscopic
findings revealed a rotator cuff tear, a superior labrum anterior to posterior (SLAP) lesion, and
subacromial bursitis. Appellant underwent subacromial decompression, debridement of a rotator
cuff tear, and debridement of a SLAP lesion. Dr. Duda explained that appellant underwent
physical therapy for strengthening and stabilization and achieved full range of motion of her
shoulder and was given a return to work note effective January 11, 2016, with a 25-pound lifting
restriction. He related that appellant reported that her symptoms started from work-related
activities, and he noted that her arthroscopic findings were consistent with rotator cuff pathology
caused by work-related activities.
By decision dated February 5, 2016, OWCP found that appellant established fact of
injury, but it denied her traumatic injury claim because the medical evidence was insufficient to
establish that the claimed condition was causally related to the accepted November 13, 2014
work incident.
On February 24, 2016 appellant requested a review of the written record by an OWCP
hearing representative.
By decision dated July 26, 2016, OWCP’s hearing representative modified the
February 5, 2016 decision to reflect that the claim was denied based on fact of injury, rather than
causal relationship. He explained that there was no factual basis upon which to base the claim
for either a traumatic injury or an occupational disease.
LEGAL PRECEDENT
A claimant seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial

2

Id.

3

evidence, including that an injury was sustained in the performance of duty as alleged, and that
any specific condition or disability claimed is causally related to the employment injury.3
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.4 The second component is whether the employment incident caused a
personal injury.5
An alleged work incident does not have to be confirmed by eyewitnesses in order to
establish that an employee sustained an injury in the performance of duty, but the employee’s
statement must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action.6 A consistent history of the injury as reported on medical reports to
the claimant’s supervisor and on the notice of injury can also be evidence of the occurrence of
the incident.7 Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.8 An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.9 However, an
employee has not met his or her burden when there are inconsistencies in the evidence such as to
cast serious doubt upon the validity of the claim.10
ANALYSIS
OWCP initially found that appellant established both the factual and medical components
of fact of injury, but it denied her claim because she failed to establish causal relationship. The
hearing representative subsequently affirmed the denial, but instead found that appellant had
failed to establish that the employment incident occurred as alleged. Accordingly, the hearing
representative modified the original decision to reflect that appellant had not established the
factual component of fact of injury. The Board finds that appellant failed to meet her burden of
proof to establish an injury in the performance of duty on November 13, 2014, as alleged.
3

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

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Rex A. Lenk, 35 ECAB 253, 255 (1983).

7

Id. at 255-56.

8

Dorothy M. Kelsey, 32 ECAB 998 (1981).

9

Id.

10

Joseph A. Fournier, 35 ECAB 1175 (1984).

4

Appellant claimed to have torn her right rotator cuff on November 13, 2014 at 10:30 a.m.
while pushing, pulling, and lifting parcels and equipment in the performance of duty. She did
not stop work at the time, and, in fact, waited more than a year before filing her claim. The
record indicated that appellant had been treated for a right shoulder condition more than a month
prior to the alleged November 13, 2014 injury.
In its January 4, 2016 claim development letter, OWCP asked that appellant provide
witness statements and/or other documentation to support her claim, but she did not provide any
additional documentation. Appellant merely noted that she experienced shoulder pain and
forearm numbness “lifting, reaching, pulling, [and] pushing....” She failed to provide a detailed
description of the alleged November 13, 2014 employment incident. Dr. Duda initially indicated
in his January 4, 2016 attending physician’s report that appellant’s right shoulder condition was
not employment related. And, while he later attributed appellant’s shoulder condition to
unspecified work-related activities, he did not identify a particular date of injury, or even
mention that he had previously examined appellant on September 23 and November 13, 2014.
The Board finds that appellant has not submitted sufficient evidence to establish that she
actually experienced the alleged November 13, 2014 employment incident at the time, place, and
in the manner alleged. Appellant’s description of the alleged injury is vague. And while she
reportedly received medical attention on November 13, 2014, those records have not been
submitted in support of her claim. Lastly, Dr. Duda’s contradictory statements regarding the
cause of appellant’s right shoulder condition further undermine her allegation that she suffered a
right rotator cuff tear in the performance of duty on November 13, 2014. As such, the Board
finds that appellant failed to meet her burden of proof to establish her claim.11
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish an injury in
the performance of duty on November 13, 2014, as alleged.

11

See V.F., 58 ECAB 321, 326-27 (2007).

5

ORDER
IT IS HEREBY ORDERED THAT the July 26, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Indianapolis, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1269
Issued: November 16, 2017

Case Submitted on the Record

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

JURISDICTION
On May 22, 2017 appellant, through counsel, filed a timely appeal from a
November 28, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). The most recent merit decision in this case was the April 7, 2015 decision of the
Board, which became final 30 days after issuance and is not subject to further review.2 As there
was no merit decision by OWCP within 180 days of the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of appellant’s claim.
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

20 C.F.R. § 501.6(d).

3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances outlined in
the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On February 23, 2012 appellant, then a 38-year-old motor vehicle operator, filed a
traumatic injury claim ( Form CA-1) alleging that on February 22, 2012 he injured his low
back when lifting a wheelchair-bound patient up steps. He did not stop work.
Appellant was initially treated by Dr. Eromonelel O. Idahosa, a Board-certified
internist, on February 22, 2012 for low back pain. He reported assisting a wheelchairbound patient up steps and he felt a pull in his low back. Dr. Idahosa diagnosed low back
pain and muscle strain.
On October 5, 2012 D r . Warren J. Hoyt, a Board-certified internist, treated
appellant for ongoing neck and lower back pain. Appellant reported his low back pain
began after lifting a 380-pound patient and he felt a pull in his back. An October 11, 2012
magnetic resonance imaging (MRI) scan of the lumbar spine revealed central disc protrusion
at L2-3 with disc contact with the traversing L3 nerve roots, and mild grade 2
spondylolisthesis at L5-S1 due to bilateral L5 pars interarticularis defects.
Appellant was also treated by Dr. Amy Leland, a Board-certified physiatrist, for a
back injury. In reports dated November 1 to January 2, 2013, D r . Leland treated him for
chronic neck pain since a 2001 motor vehicle accident and for a recent work-related low
back injury occurring on February 22, 2012 while pulling a wheelchair-bound patient
upstairs. He reported that on October 4, 2012 his back symptoms flared up without a
specific event and she diagnosed right side sacroiliac joint dysfunction and low back pain.
Dr. Leland found appellant disabled for six weeks. A December 6, 2012 electromyogram
revealed no abnormalities of the lower extremities with no evidence of radiculopathy or
peripheral neuropathy.
In a February 8, 2013 decision, OWCP denied the claim as the medical evidence did
not demonstrate that the claimed medical condition was related to the accepted work incident.
Therefore, appellant failed to establish an employment injury.
On March 11, 2013 appellant requested reconsideration. He submitted a February 15,
2013 report from D r . Hoyt, who opined that appellant’s lumbar disc injury with recurring
low back pain and sciatica of the legs was due to a work injury. Dr. Hoyt reported that on
4

Docket No. 15-0108 (issued April 7, 2015).

2

February 22, 2012 appellant was injured while lifting a 380-pound patient. He noted that
within a reasonable degree of certainty “such an axial overload could have and did injure
appellant’s lumbar spine, and specifically his discs.” Dr. Hoyt advised that the October 11,
2012 MRI scan showed bulging discs contacting three nerve roots.
He noted t h a t
appellant’s walking was impaired due to sciatica and he had sacroiilitis joint dysfunction
“likely” related to the original lifting injury. Dr. Hoyt noted that appellant could return to
work with restrictions.
In a decision dated May 23, 2014, OWCP denied modification of the decision
dated February 8, 2013.
On May 19, 2014 appellant requested reconsideration and submitted evidence from
Dr. Hoyt. On June 12, 2013 Dr. Hoyt indicated that appellant could work with restrictions. In
a February 7, 2014 report, he noted appellant’s complaints of low back and leg pain since
February 22, 2012. D r . Hoyt noted first treating appellant on April 2, 2012 and appellant
reported that he felt a pull and pain in his back upon lifting a 380-pound patient in a
wheelchair. An MRI scan revealed a central disc protrusion that was consistent with the
injury described. Dr. Hoyt indicated that the overly heavy axial spinal loading would have
injured appellant’s lumbar discs. He asserted that appellant had an injury, his symptoms
and MRI scan were consistent with this, and it had an ongoing impact on his ability to
work. Dr. Hoyt did not suspect malingering. He opined with a reasonable degree of medical
certainty that appellant was injured on the job and continued to have residuals of this injury.
Appellant also submitted physical therapy reports.
In a decision dated May 29, 2014, OWCP denied modification of the decision
dated May 23, 2014. Appellant appealed to the Board. In an April 7, 2015 decision, the Board
affirmed the May 29, 2014 OWCP decision.5
Appellant subsequently submitted a December 24, 2015 report from Dr. Hoyt who noted
that he sustained a 2012 back injury at work and experienced ongoing chronic low back pain.
He requested a rear-loaded van as a reasonable accommodation, this request was denied and he
filed an Equal Employment Opportunity (EEO) complaint. Appellant indicated that since filing
the EEO complaint he has not been getting breaks and lunches and his back is getting worse.
Dr. Hoyt diagnosed obstructive sleep apnea, chronic low back pain, chronic cervical pain,
asthma, and obesity. In a February 23, 2016 report, he noted that appellant reported his low
back pain and bilateral neck pain was better after treatment with a myofascial massage
therapist. Appellant reported that in 2012 he sustained a back injury while lifting a 380-pound
wheelchair-bound double amputee up a tall step and he felt a severe pull in his lower right back.
He noted that prior to this incident he had some back soreness from working but not in the same
location and not persisting more than a few days.
In a March 9, 2016 letter, received by OWCP on November 15, 2016, counsel requested
reconsideration. Counsel asserted that the causal connection between appellant’s diagnoses and
the accepted work-related injury were firmly established by Dr. Hoyt. She indicated that
5

Docket No. 15-0108 (issued April 7, 2015).

3

appellant sustained an injury to his back during a work incident while lifting a wheelchairbound patient on February 22, 2012. Counsel referenced Dr. Hoyt’s February 7, 2014 medical
report which noted “I would say and will testify that with a reasonable degree of medical
certainty, my opinion as a physician is that [appellant] was injured on the job and suffers to this
day as a result.” Dr. Hoyt further noted “[Appellant] felt a pull and then the pain ensued
thereafter. The MRI scan of October 11, 2012 revealed a central disc protrusion, contacting
bilateral traversing L3 nerve roots. What is seen would be consistent with an injury as he has
described. The overly heavy axial spinal loading would have injured his lumbar disc.” Counsel
asserted that Dr. Hoyt’s report provided all the information necessary to find causal relation for
the lifting incident on February 22, 2012 to the diagnosed conditions. She further indicated that
in a February 15, 2013 report Dr. Hoyt noted “[appellant’s] lumbar disc injury with recurring
low back pain and sciatica of legs is due to a work-related injury in my medical opinion.”
Dr. Hoyt further explained that “On February 22, 2012 [appellant] suffered this injury while
lifting a 380-pound patient he was transporting. Within a reasonable degree of certainty such
an axial overload could have and did injury his lumbar spine and specifically his discs.”
Counsel asserted that appellant’s case was similar to Glenn C. Chasteen,6 where the Board
found that causal relationship did not denote a single and exclusive causative factor, nor did it
preclude aggravation of an underlying condition by employment factors. The Board noted that
when a person has a preexisting condition which is not disabling but which becomes disabling
because of aggravation causally related to the employment, then regardless of the degree of
such aggravation, the resulting disability is compensable. Counsel asserted that Dr. Hoyt’s
report was well rationalized and expressed in terms of a reasonable degree of medical certainty.
She requested that appellant’s case accepted for lumbago, spondylolisthesis at L5-S 1, and
central disc protrusion L2-3 contacting bilateral traversing L3 nerve roots.
By decision dated November 28, 2016, OWCP denied appellant’s request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.7 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of
OWCP’s decision for which review is sought.8 The Board has found that imposition of this oneyear filing limitation does not constitute an abuse of discretion.9
OWCP may not deny a reconsideration request solely because it was untimely filed.
When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake

6

42 ECAB 493, 499 (1991).

7

5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

8

20 C.F.R. § 10.607(a).

9

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

4

a limited review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP must reopen the case for merit review.10
To demonstrate clear evidence of error, a claimant must submit evidence that is relevant
to the issue that was decided by OWCP,11 is positive, precise, and explicit, and manifests on its
face that OWCP committed an error.12 The evidence must not only be of sufficient probative
value to create a conflict in medical opinion or demonstrate a clear procedural error, but must
also shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to demonstrate clear evidence of error. It is not enough
merely to show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has demonstrated clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.13
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a
timely application for review. As noted, an application for reconsideration must be received
within one year of the date of OWCP’s decision for which review is sought.14 As
appellant’s request for reconsideration was not received by OWCP until November 15, 2016,
more than one year after issuance of the Board’s April 7, 2015 merit decision, it was untimely
filed. Consequently, he must demonstrate clear evidence of error by OWCP denying his claim
for compensation.
The Board finds that appellant has failed to demonstrate clear evidence of error.
Appellant submitted a December 24, 2015 report from Dr. Hoyt who noted that appellant
had a 2012 back injury at work and ongoing chronic low back pain. Dr. Hoyt diagnosed
obstructive sleep apnea, chronic low back pain, chronic cervical pain, asthma, and obesity. In a
February 23, 2016 report, he noted that appellant reported his low back pain and bilateral neck
pain was better after myofascial massage. Dr. Hoyt noted that in 2012 appellant sustained a back
injury while lifting a wheelchair-bound patient and felt a severe pull in his lower right back. He
diagnosed obstructive sleep apnea, chronic low back pain, chronic cervical pain, asthma, and
obesity. While Dr. Hoyt provided support for causal relationship, the Board notes that clear
evidence of error is intended to represent a difficult standard. Evidence such as a detailed, well10

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (February 2016) (the term “clear evidence of error”
is intended to represent a difficult standard).
11

Dean D. Beets, 43 ECAB 1153 (1992).

12

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

13

J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

14

20 C.F.R. § 10.607(a).

5

rationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development, is not clear evidence of error.15 The
Board finds that this evidence does not rise to the level of clear evidence of error.
In her reconsideration request, counsel asserted that the causal connection between
appellant’s diagnoses and the accepted work-related injury was firmly established by Dr. Hoyt’s
reports. She reiterated the opinion of Dr. Hoyt in support of causal relationship and asserted that
he provided all the information necessary to find causal relation between the February 22, 2012
lifting incident and the diagnosed conditions. Counsel cited Board precedent and asserted that
the claim should be accepted. The Board notes that, while appellant addressed his disagreement
with OWCP’s decision denying his claim for a traumatic injury, his disagreement does not
demonstrate clear evidence of error as it does not raise a substantial question as to the correctness
of OWCP’s most recent merit decision. Regarding the cited precedent, Glenn C. Chasteen,16
counsel asserted that if a person has a preexisting condition which is not disabling but which
becomes disabling because of aggravation causally related to the employment, regardless of the
degree of such aggravation, the resulting disability is compensable. However, Chasteen and the
present matter are not procedurally similar. In Chasteen, the Board had jurisdiction over the
merits of the claim. In the present case, as explained, the Board does not have merit jurisdiction
over appellant’s claim. It only has jurisdiction to consider whether appellant has demonstrated
clear evidence of error. Furthermore, as noted, clear evidence of error is intended to represent a
difficult standard and even a well-rationalized report is not clear evidence of error.17 These
assertions by counsel do not demonstrate clear evidence of error.
The Board finds that OWCP properly found that appellant’s March 9, 2016 request for
reconsideration received on November 15, 2016 was untimely filed and failed to demonstrate
clear evidence of error.
On appeal counsel asserts that appellant timely submitted the request for reconsideration
of the April 7, 2015 decision. She notes that the reconsideration request was mailed on March 9,
2016 prior to the one year deadline and was sent certified mail. Counsel noted a confirmation
number for the mailing. She further asserted that the mail was received on March 31, 2016 but
OWCP scanned only the exhibits into the file on April 1, 2016 and the reconsideration request
was not scanned into the file until November 10, 2016. As noted above, a request for
reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought. The received date is determined by when the document is recorded in the
Integrated Federal Employees’ Compensation System (iFECS).18
In this case, the
reconsideration request was received by OWCP on November 15, 2016 and there is no evidence
in the record at the time of the November 28, 2016 decision that it was received before that time.
As noted, the Board does not have jurisdiction over the merits of the claim.
15

D.G., 59 ECAB 455 (2008).

16

Supra note 4.

17

See supra note 13.

18

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).

6

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the November 28, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2017
Washington, DC

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

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

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

7