United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Houston, TX, Employer
__________________________________________

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Appearances:
Steven V. Hunt, Sr., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1345
Issued: December 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 27, 2014 appellant, through her representative, filed a timely appeal from an
April 7, 2014 nonmerit decision of the Office of Workers’ Compensation Programs denying her
request for reconsideration. The most recent merit decision in this case was August 20, 2012.
As more than 180 days elapsed from August 20, 2012 to the date of the appeal, and pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
On appeal, appellant’s representative contends that her request for reconsideration was
timely as he and appellant observed a “Ring” date being placed on the envelope on August 14,
1

5 U.S.C. § 8101 et seq.

2013 which contained her request. The request was deposited in the postal mail system.
Appellant’s representative noted that the record does not contain the envelope containing the
reconsideration request.
FACTUAL HISTORY
This case has previously been before the Board. In a May 2, 2005 decision,2 the Board
affirmed OWCP’s October 30, 2003 and June 10, 2004 decisions, denying appellant’s claim for
compensation for total disability commencing August 26, 2003 causally related to her accepted
August 25, 2003 employment injury. In a May 3, 2010 decision,3 the Board affirmed OWCP
decisions dated December 10, 2008 and April 9, 2009, denying her claim for total disability
compensation for the period in question and request for further merit review. In a July 29, 2013
decision,4 the Board affirmed OWCP’s January 22, 2013 decision, denying appellant’s request
for an oral hearing before an OWCP hearing representative regarding the August 20, 2012 denial
of her claim for compensation for total disability commencing August 26, 2003 as untimely filed.
The facts and circumstances of the case as set forth in the Board’s prior decisions are
incorporated herein by reference.5 The facts relevant to the current appeal are set forth.
On November 11, 2013 appellant, through her representative, requested reconsideration
of the August 20, 2012 merit decision and submitted additional evidence.
Progress notes from J.A. Morgan, a licensed counselor and providers whose signatures
are illegible addressed the treatment of appellant’s chronic low back and knee symptoms from
March 1, 2013 to March 24, 2014. It was noted that her depression and anxiety also prevented
her return to work.
In progress notes dated July 24, 2013 to February 26, 2014, Dr. Orlando P. Peccora, a
psychiatrist, noted appellant’s symptoms and provided examination findings. He diagnosed
lumbar disc protrusion and sprain and prolonged depression.
In reports dated August 5 and December 23, 2013, Dr. Peccora reviewed a history of the
August 25, 2003 employment injuries and appellant’s medical treatment. He diagnosed pain
disorder associated with psychological factors and general medical condition on Axis 1, major
depressive disorder on Axis 2, lumbar disc displacement on Axis 4 and a global assessment
functioning score of 40 on Axis 5. Dr. Peccora found no diagnosis on Axis 2. He advised that
appellant was temporarily totally disabled as a direct result of her August 25, 2003 work injury.
Appellant could not function in a work environment in her present condition. Due to the job
injury, she had a lumbar disc displacement and lower back strain to such a degree that she
2

Docket No. 04-2235 (issued May 2, 2005).

3

Docket No. 09-1525 (issued May 3, 2010).

4

Docket No. 13-1100 (issued July 29, 2013).

5

OWCP accepted that on August 25, 2003 appellant, then a 31-year-old transportation security screener,
sustained lumbar strain, prolonged depressive reaction and displacement of lumbar intervertebral disc with
myelopathy while in the performance of duty.

2

required assistance when getting out of bed or rising from a sitting position. Further, appellant
could not lift more than three to four pounds or walk more than one-half a city block. She also
had blinding headaches, an inability to walk without stumbling and stand more than 15 minutes,
required help with routine household tasks and had trouble grasping and holding objects as a
result of weakness in her arms and hands. Dr. Peccora related that appellant struggled daily with
intense psychological distress. Appellant was not stable enough to focus on duties or tasks at
hand. She also had impaired concentration, chronic depression and anxiety, sleep impairment,
confusion and unresolved anger especially towards the employing establishment. Dr. Peccora
stated that it was not unusual for chronic pain patients to develop secondary ailments as a result
of the initial injury. He noted while trying to accept her fate and put on a brave face, appellant
was often tearful, demonstrated loss of concentration and often used incorrect words when
speaking. The additional worry of having a teenage son in the military added to her stress and
diminished her quality of life. Dr. Peccora opined that appellant could possibly regain the ability
to reenter the workforce and be productive and independent. He stated that she had shown
considerable improvement.
In medical reports dated August 9 to November 8, 2013, Dr. Ronnie D. Shade, a Boardcertified orthopedic surgeon, noted appellant’s complaint of back pain and muscle spasms.
Appellant also complained about bilateral leg pain, numbness, tingling and weakness, greater on
the right than left and depression. Dr. Shade reviewed her medical records which included
diagnostic and laboratory test results. On physical examination, Dr. Shade assessed chronic
lumbosacral strain, bilateral lower extremity neuritis, hyperreflexia of the lower extremities with
lumbar stenosis, depression and anxiety, lumbar disc protrusion at L4-5 and L5-S1 and lumbar
spinal stenosis at L4-5. He noted that appellant had been off work since 2003. Dr. Shade
advised that she should continue to be off work due to lumbar muscle spasms and difficulty with
proper ambulation. He suspected that appellant had secondary emotional conditions that were
directly related to her August 25, 2003 employment injury and impeded her ability to recover.
Dr. Shade advised that she continued to require mental and physical care as a result of her
employment injury. He concluded that appellant was temporarily totally disabled and she would
be at risk to herself and the employing establishment if she returned to work. In an August 9,
2013 prescription, Dr. Shade recommended that she continue her chronic pain program.
Dr. Jeffrey D. Reuben, a Board-certified orthopedic surgeon, reviewed the results of an
October 23, 2013 autonomic nervous system assessment performed by Dr. Julia Franklin, a
chiropractor. Dr. Reuben listed a diagnosis of lumbar spine disc disease. He advised that the test
results revealed postural orthostatic tachycardia syndrome. Dr. Reuben recommended that
appellant be referred to a cardiologist.
A December 6, 2013 laboratory report found no evidence of specimen adulteration.
By letter dated January 15, 2014, appellant’s representative stated that a decision
regarding appellant’s August 7, 2013 request for reconsideration was past due. He contended
that she was entitled to a merit review because OWCP had failed to issue a decision within 120
days of the filing of the reconsideration request.

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In an April 7, 2014 decision, OWCP denied appellant’s request for reconsideration,
without a merit review. It found that the request was not filed within one year of its August 20,
2012 merit decision and did not establish clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.6 It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision.7
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that OWCP’s final merit decision was in error.8
Its procedures state that OWCP will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth under section 10.607 of OWCP regulations,9 if the
claimant’s application for review shows clear evidence of error on the part of OWCP.10 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.11
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.12 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.13

6

See J.W., 59 ECAB 507 (2008); Mary A. Ceglia, 55 ECAB 626 (2004).

7

20 C.F.R. § 10.607(a); see B.W., Docket No. 10-323 (issued September 2, 2010); A.F., 59 ECAB 714 (2008);
Gladys Mercado, 52 ECAB 255 (2001).
8

D.G., 59 ECAB 455 (2008); Cresenciano Martinez, 51 ECAB 322 (2000).

9

20 C.F.R. § 10.607.

10

See M.L., Docket No. 09-956 (issued April 15, 2010); Robert G. Burns, 57 ECAB 657 (2006).

11

Andrew Fullman, 57 ECAB 574 (2006); Alberta Dukes, 56 ECAB 247 (2005).

12

F.R., Docket No. 09-575 (issued January 4, 2010); S.D., 58 ECAB 713 (2007); Joseph R. Santos, 57 ECAB
554 (2006).
13

J.S., Docket No. 10-385 (issued September 15, 2010); D.D., 58 ECAB 206 (2006); Robert G. Burns, supra
note 10.

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OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard.14 The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence, such as a
detailed, well-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 makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.16
ANALYSIS
The Board finds that appellant filed an untimely request for reconsideration. OWCP
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original OWCP decision.17 A right to reconsideration within one year also
accompanies any subsequent merit decision on the issues.18 As appellant’s August 7, 2013
request for reconsideration was received by OWCP on November 11, 2013, more than one year
after the August 20, 2012 merit decision it was untimely. Consequently, she must demonstrate
clear evidence of error by OWCP in denying her claim for compensation.19
The Board finds that appellant’s untimely request for reconsideration failed to
demonstrate clear evidence of error. In its August 20, 2012 decision, OWCP denied her claim
for wage-loss compensation commencing August 26, 2003 as she failed to submit sufficient
medical evidence establishing that her claimed total disability was causally related to the
accepted August 25, 2003 employment injuries. By letter dated January 15, 2014, appellant’s
representative alleged that appellant was entitled to a merit review as OWCP had failed to issue a
decision within 120 days of the filing of the reconsideration request. The Board finds, however,
that OWCP’s delay did not constitute error or prejudice her claim.20 The most recent merit
review in this case was conducted by OWCP on August 20, 2012. A request for reconsideration
was not filed until November 11, 2013. A nonmerit review was conducted on April 7, 2014.
Appellant did not seek review of the August 20, 2012 decision before the Board within 180 days
of issuance.21
14

S.S., Docket No. 11-1579 (issued April 24, 2012).

15

James Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.3(c) (October 2011).
16

See M.L., supra note 10; G.H., 58 ECAB 183 (2006); Jack D. Johnson, 57 ECAB 593 (2006).

17

20 C.F.R. § 10.607(a).

18

See Robert F. Stone, 57 ECAB 292 (2005).

19

20 C.F.R. § 10.607(b); see D.G., supra note 8; Debra McDavid, 57 ECAB 149 (2005).

20

See C.J., Docket No. 09-2103 (issued June 1, 2010); see Federal (FECA) Procedure Manual supra note 15 at
Chapter 2.1602.9 (March 2010) (when OWCP delays a reconsideration decision beyond 90 days and such delay
jeopardizes the claimant’s right to review the merits of the case before the Board, it should conduct a merit review).
21

The Board has jurisdiction to review final adverse decisions of OWCP within 180 days from the date of
issuance. See 20 C.F.R. §§ 501.3(a) and 3(e), respectively.

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Dr. Peccora’s progress stated that appellant was temporarily totally disabled as a direct
result of the accepted August 25, 2003 work injuries. He diagnosed lumbar disc protrusion and
sprain and prolonged depression. Dr. Peccora noted appellant’s limitations and reactions to her
conditions. He stated that it was not unusual for chronic pain patients to develop secondary
ailments as a result of the initial injury. Appellant’s worries about her son added to her stress
which further diminished her quality of life. While Dr. Peccora’s progress notes are generally
supportive of her claim for total disability compensation, his progress notes are not sufficient to
establish clear evidence of error on the part of OWCP. The Board has noted that clear evidence
of error is intended as a difficult standard. Evidence such as a well-rationalized medical report
which, if submitted prior to when the denial was issued, would have created a conflict in medical
opinion, is not clear evidence of error.22 This evidence does not shift the weight of the medical
evidence in favor of appellant or raise a fundamental question as to the correctness of OWCP’s
August 20, 2012 decision. For the stated reasons, the Board finds that Dr. Peccora’s reports do
not demonstrate clear evidence of error in the August 20, 2012 decision.
Dr. Shade found that appellant was temporarily totally disabled for work. He diagnosed
chronic lumbosacral strain, bilateral lower extremity neuritis, hyperreflexia of the lower
extremities with lumbar stenosis, depression and anxiety, lumbar disc protrusion at L4-5 and L5S1 and lumbar spinal stenosis at L4-5. Dr. Shade suspected that appellant’s secondary emotional
conditions were directly related to the August 25, 2003 employment injuries. While Dr. Shade
opined that appellant was temporarily totally disabled for work, his reports do not establish clear
evidence of error or shift the weight of evidence in favor of appellant’s claim.
Similarly, Dr. Reuben’s report which found that appellant required referral to a
cardiologist is insufficient to shift the weight of the medical evidence in favor of her claim. He
did not provide any medical opinion explaining how her diagnosed condition and any resultant
disability were causally related to the accepted employment injuries.23 The Board finds that this
evidence is insufficient to establish clear evidence of error in the August 20, 2012 decision.
The progress notes from J.A. Morgan, a licensed counselor and providers whose
signatures are illegible have no probative medical value. A licensed counselor is not a physician
as defined under FECA24 and the illegible signatures do not establish whether the person
completing the reports qualified as a physician as defined under FECA.25 The Board finds that
the argument and evidence submitted by appellant are insufficient to shift the weight of the
evidence in favor of her claim or raise a substantial question as to the correctness of OWCP’s
22

See Joseph R. Santos, supra note 12.

23

Id.

24

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides that physician includes surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their
practice as defined by State law. See Roy L. Humphrey, 57 ECAB 238 (2005); Merton J. Sills, 39 ECAB 572,
575 (1988).
25

C.B., Docket No. 09-2027 (issued May 12, 2010) (a medical report may not be considered as probative medical
evidence if there is no indication that the person completing the report qualifies as a physician as defined in 5 U.S.C.
§ 8101(2); reports lacking proper identification do not constitute probative medical evidence).

6

last merit decision denying her claim. Therefore, appellant has not established clear evidence of
error.26
On appeal, appellant’s representative contended that appellant’s request for
reconsideration was timely as he and appellant observed a “Ring” date being placed on the
envelope which contained the request and it being deposited in the postal mail system. He
further contended that the envelope containing the reconsideration request was not contained in
the case record. Effective August 29, 2011 OWCP amended its procedures to reflect that an
application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought27 as opposed to the use of the postmark to
determine timeliness.28 Appellant’s request was untimely as it was not received by OWCP until
November 11, 2013.
Appellant’s representative further contends that the reconsideration request was timely
under the mailbox rule. It is presumed, in the absence of evidence to the contrary, that a notice
mailed to an individual in the ordinary course of business was received by that individual.29 This
presumption arises when it appears from the record that the notice was properly addressed and
duly mailed.30 The appearance of a properly addressed copy in the case record, together with the
mailing custom or practice of the sender, will raise a presumption that the original was received
by the addressee. This is known as the mailbox rule.31 Although the mailbox rule raises a
presumption of receipt, it does not raise a presumption of timeliness. Receipt by OWCP is
established. Timely receipt is not.
Appellant also submitted new evidence on appeal. However, the Board lacks jurisdiction
to review such evidence for the first time on appeal.32
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
26

See Veletta C. Coleman, 48 ECAB 367 (1997).

27

See Federal (FECA) Procedure Manual supra note 15 at Chapter 2.1602.4(e) (August 29, 2011).

28

Prior to August 29, 2011, OWCP regulations provided in pertinent part: “An application for reconsideration
must be sent within one year of the date of OWCP’s decision for which review is sought. If submitted by mail, the
application will be deemed timely if postmarked by the U.S. Postal Service within the time period allowed.” Id. at
Chapter 2.1602.3(b)(1) (January 2004).
29

George F. Gidicsin, 36 ECAB 175 (1984) (when OWCP sends a letter of notice to a claimant, it must be
presumed, absent any other evidence, that the claimant received the notice).
30

Michelle R. Littlejohn, 42 ECAB 463 (1991).

31

Larry L. Hill, 42 ECAB 596 (1991) (the presumption of receipt under the mailbox rule must apply equally to
claimants and OWCP alike).
32

20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB
281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the April 7, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 15, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hattiesburg, MS, Employer
__________________________________________

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

Docket No. 10-1595
Issued: February 17, 2011

Case Submitted on the Record

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

JURISDICTION
On May 27, 2010 appellant filed a timely appeal of the January 22 and April 12, 2010
merit decisions by the Office of Workers’ Compensation Programs denying his claim for
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of the case.1
ISSUE
The issue is whether appellant has established that he sustained an injury in the
performance of duty on October 19, 2009, as alleged.

1

The Board has no jurisdiction to review medical evidence submitted after the Office’s April 12, 2010 decision.
See 20 C.F.R. § 501.2(c)(1), which provides that the Board’s review of a case is limited to the evidence in the case
record that was before the Office at the time of its final decision. Appellant may submit this evidence to the Office
with a formal request for reconsideration pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b).

On appeal, appellant contends that his claim was denied because his treating physician
made an error with regards to the date of the incident. He also contended that his supervisor and
physicians agree that his injury occurred while he was performing his federal duties.
FACTUAL HISTORY
On October 23, 2009 appellant, then a 35-year-old city mail carrier, filed a traumatic
injury claim alleging that on October 19, 2009, during the course of his federal duties, he stepped
into a water meter pothole. He noted that at that time his foot sank about two feet and his ankle
bent back, thereby causing injuries to his ankle and foot.
In support of his claim, appellant submitted work status reports and a medical report by
Dr. Bruce McCarthy, a Board-certified orthopedic surgeon. In an October 30, 2009 work status
report form, Dr. McCarthy noted a strain to appellant’s right foot/ankle. In a note of the same
date, he indicated that appellant had been referred to him by Dr. Maria C. Soriano, a Boardcertified pediatrician who also is a family practitioner, approximately one week after injuring his
ankle. Dr. McCarthy noted that appellant stepped in a hole on October 19, 2009, had immediate
pain and has been limping ever since. He stated that appellant was having a terrible time
ambulating and opined that he could not work in the immediate future. In a November 5, 2009
report, Dr. McCarthy checked a box indicating that appellant had a torn ligament in his right
ankle and stated that he could not work at that time.
By letter dated November 10, 2009, the employing establishment controverted
appellant’s claim based on performance of duty and causal relationship.
In a November 6, 2009 report, Dr. McCarthy stated that his examination showed that
appellant is point tender over the posterior calcaneal talar ligament, which is a serious but
unusual ligament tear. He did not believe that appellant could return to work at this time. In a
November 19, 2009 report, Dr. McCarthy stated that appellant was making nice progress. He
noted that appellant will ambulate, but not on irregular surfaces. Dr. McCarthy noted that it was
hard for appellant to get up and down. He noted that appellant remained point tender over the
posterior talofibular ligament but there is no subluxation present. Dr. McCarthy recommended
an intensive physical therapeutic exercise program. In a November 25, 2009 note, he stated that
appellant had done very well in his rehabilitation exercises and that his ankle is less tender and
was stable. Dr. McCarthy stated that appellant would attempt to return to regular duty and that
he discharged him on a permanent basis without consideration of impairment.
In an October 24, 2009 note, Dr. Soriano assessed appellant with right foot heel injury.
She noted that on October 19, 2009 while at work he stepped in a pothole that was about two feet
deep and twisted and hurt his foot, ankle and heel.
By decision dated January 22, 2010, the Office denied appellant’s claim. It found that the
medical evidence does not demonstrate that the claimed medical condition is related to the
established work-related event.
On January 27, 2010 appellant requested a review of the written record by an Office
hearing representative. In support thereof, he submitted a letter from Dr. McCarthy dated

2

January 28, 2010 wherein he noted that he was enclosing a copy of his records and noted that
these records state that appellant injured himself on October 30, 2009 while working.
Dr. McCarthy stated that appellant’s injury “is definitely from a work related trauma.”
By decision dated April 12, 2010, the hearing representative affirmed the January 22,
2010 Office decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that an
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.4 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue6 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,7 must be one of reasonable medical certainty,8
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.9
2

5 U.S.C. § 8122(a).

3

Id.

4

John J. Carlone, 41 ECAB 345 (1989).

5

Shirley A. Temple, 48 ECAB 404 (1997).

6

Mary J. Briggs, 37 ECAB 578 (1986).

7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

9

See William E. Enright, 31 ECAB 426, 430 (1980).

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ANALYSIS
It is not disputed that appellant experienced a work incident on October 19, 2009.
However, the Office denied his claim for the reason that the medical evidence did not establish a
causal relationship between a diagnosed medical condition and the work incident.
The Board finds that appellant has not established a causal relationship between a
diagnosed medical condition and the October 19, 2009 work incident. The reports of
Dr. McCarthy are of limited probative value on the issue of causal relationship. Dr. McCarthy
stated that appellant was point tender over the posterior calcaneal talar ligament, which was a
serious but unusual ligament tear. However, he does not adequately explain how appellant’s
October 19, 2009 employment incident caused or contributed to this condition. In the
January 28, 2010 report, Dr. McCarthy briefly stated that appellant’s injury was related to an
October 30, 2009 incident which occurred when he was working and stated that it was
“definitely from a work related trauma.” Although he used an incorrect date of injury in this
report, this does not constitute an error fatal to appellant’s claim as his other reports included the
October 19, 2009 date maintained by him. However, the Board finds that Dr. McCarthy does not
provide any rationalized explanation linking appellant’s diagnosed condition to the employment
incident; he offered no medical explanation for his conclusion.
Similarly, Dr. Soriano noted the work incident and assessed appellant with right foot/heel
injury, but never provided a rationalized explanation linking the two.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor belief that the condition was caused by his employment is sufficient to establish
a causal relationship.10 Appellant has not provided a well-rationalized medical opinion linking a
medical diagnosis to his accepted employment incident. Accordingly, the Office properly denied
his claim.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on October 19, 2009, as alleged.

10

D.I., 59 ECAB 158 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 12 and January 22, 2010 are affirmed
Issued: February 17, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 09-2119
Issued: August 23, 2010

Case Submitted on the Record

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

JURISDICTION
On August 18, 2009 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ decisions dated September 15, 2008 and March 30, 2009. Under 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.1
ISSUES
The issues are: (1) whether appellant has more than six percent right arm impairment and
12 percent left arm impairment; and (2) whether the Office properly refused to reopen appellant’s
case for reconsideration under 5 U.S.C. § 8128.

1

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

FACTUAL HISTORY
On March 4, 2006 appellant, a 47-year-old modified letter carrier, injured her left
shoulder, left arm and the left side of her neck when her mail truck was struck from behind by
another vehicle. She filed a claim for benefits, which the Office accepted for neck sprain/strain.
On August 11, 2006 appellant filed a claim for a schedule award based on additional
impairment of her left and right upper extremities.
By letter dated August 24, 2006, the Office asked Dr. Damien B. Sanderlin, a specialist in
family practice, to schedule an appointment with appellant to determine whether she had any
permanent impairment of her upper extremities from her accepted upper back and neck
conditions.2 Dr. Sanderlin did not respond to this letter.
In an August 25, 2006 report, Dr. Ihsan Shanti, a specialist in pain management, found
that appellant had a 20 percent impairment of the left shoulder and a 10 percent impairment of
the cervical spine pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (5th ed. 2001). He rated impairment based on loss of
range of motion in the upper extremities six percent impairment for loss of left shoulder flexion;
and four percent for loss of left shoulder extension under Figure 16-40 at page 476; a seven
percent impairment for loss of left shoulder adduction under Figure 16-43 at page 477; and a one
percent impairment for loss of left shoulder external rotation and a two percent impairment for
loss of left shoulder internal rotation under Figure 16-46 at page 479. Dr. Shanti added the range
of loss impairment to 20 percent.
With regard to the cervical spine, Dr. Shanti measured a 2 percent impairment for
abnormal flexion and a 2 percent impairment for loss of extension under page 418 at Table 15-12
of the A.M.A., Guides; a 1 percent impairment for left lateral bending/flexion and a 1 percent
impairment for right lateral bending/flexion under Table 15-13 at page 420 of the A.M.A.,
Guides; a 2 percent impairment for left-sided abnormal motion and ankylosis/rotation and a 2
percent impairment for right-sided abnormal motion and ankylosis/rotation under Table 15-14 at
page 421 of the A.M.A., Guides, for a total 10 percent impairment of the cervical region.3
In a September 7, 2006 report, Dr. Douglas R. Sharp, an osteopath and a specialist in pain
management, found on examination that appellant’s cervical range of motion was within normal
limits.
On January 11, 2007 an Office medical adviser noted that Dr. Shanti’s impairment rating
based on loss of range of motion to appellant’s neck and left shoulder was not consistent with
Dr. Sharp’s September 7, 2008 finding that she had normal cervical range of motion. He stated
that this inconsistency required further development of the medical evidence.
2

The Office previously accepted two other claims filed by appellant, File Nos. xxxxxx740 and xxxxxx552; the
records pertaining to these claims are not contained in the instant case file. It accepted a right wrist sprain and
granted a six percent schedule award for the right upper extremity. The Office also accepted left shoulder myositis
granted a schedule award for a 12 percent impairment of the left upper extremity.
3

The Board notes that Dr. Shanti rated impairments for both the right and left upper extremities.

2

The Office referred appellant to Dr. Michael D. LeCompte, an osteopath and orthopedic
surgeon, for a second opinion examination. In a February 23, 2007 report, Dr. LeCompte
advised that she did not have any ratable impairment to arms under the A.M.A., Guides. He
noted that, because appellant received an impairment rating for an injury which predated the
March 4, 2006 employment injury, it would be illogical to reassess the same impairment. With
regard to whether appellant had any additional impairment of the upper extremities stemming
from a loss of range of motion, Dr. LeCompte was unable to rate any impairment due to her poor
effort and lack of cooperation with his examination. He stated that when he asked her to perform
cervical range of motion she essentially used her extraocular muscles to look up and down and
was markedly restricted in side bending and rotation; this constituted a voluntary restriction on
her part which yielded an invalid cervical range of motion measurement. Appellant also put
forth a submaximum effort when he asked her to perform range of motion tests of the left
shoulder. Dr. LeCompte stated that it was impossible to rate impairment to the left shoulder due
to her poor effort. He concluded that appellant had no permanent impairment of her left or right
upper extremity due to her accepted conditions.
In a March 9, 2007 report, an Office medical adviser found that appellant had no ratable
impairment of the left upper extremity based on Dr. LeCompte’s February 23, 2007 report. He
noted that Dr. LeCompte evaluated appellant and reported no physical findings involving the left
upper extremity that would support the presence of impairment. The Office medical adviser
noted that appellant exerted a submaximal effort during range of motion testing of the neck and
left shoulder which would invalidate any impairment measurements.
In a decision dated March 20, 2007, the Office denied appellant’s claim for an additional
schedule award.
On April 11, 2007 appellant requested a review of the written record contending that she
was entitled to an additional schedule award based on Dr. Shanti’s 20 percent left shoulder
impairment rating and 10 percent cervical impairment rating. She stated that her March 4, 2006
work injury caused injury to her cervical region and aggravated her previous left shoulder injury.
Appellant asserted that Dr. LeCompte incorrectly found that she failed to cooperate with his
instructions during examination.
In a report dated December 19, 2006, Dr. Sanderlin advised that he was treating appellant
for her work-related injury. He noted that she was able to wear a seatbelt. Dr. Sanderlin
submitted treatment notes dated November 13, 2006 to April 2, 2008.
Appellant also submitted an unsigned December 6, 2002 report, which noted that she had
an 11 percent left upper extremity impairment and a 7 percent whole person impairment based
on her left shoulder under the A.M.A., Guides, due to an October 7, 1999 employment injury.
The report was not signed by a physician.
By decision dated August 14, 2007, an Office hearing representative affirmed the
March 20, 2007 decision.
By letter dated February 28, 2008, appellant requested reconsideration.
By decision dated September 15, 2008, the Office affirmed the March 20, 2007 decision.
3

By letter dated January 3, 2009, appellant requested reconsideration. She submitted a
September 29, 2008 return to work offer from the employing establishment. Appellant also
resubmitted a March 4, 2006 form report and the July 13, 2006 report of Dr. Sanderlin. She did
not submit any new, additional medical evidence.
By decision dated March 30, 2009, the Office denied appellant’s application for review on
the grounds that it did not raise any substantive legal questions or included new or relevant
evidence.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 set forth the
number of weeks of compensation to be paid for permanent loss or loss of use of the members of
the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.5 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides fifth edition as the standard to be used for evaluating schedule
losses.6 The claimant has the burden of proving that the condition for which a schedule award is
sought is causally related to his or her employment.7
ANALYSIS
The Board finds that the case is not in posture for decision.
The Office accepted appellant’s claim for a neck strain/sprain on March 4, 2006. Appellant
filed a claim for a schedule award based on permanent impairment of her upper extremities. The
Office previously granted schedule award for 6 percent loss of the right upper extremity and a
12 percent impairment of the left upper extremity. In an August 25, 2006 report, Dr. Shanti rated
20 percent impairment to the left shoulder and a 10 percent impairment of the cervical spine
based on loss of range of motion. The Office referred appellant for a second opinion impairment
evaluation with Dr. LeCompte, who examined her and found no basis for a ratable impairment.
Dr. LeCompte advised the Office of her poor effort and refusal to cooperate with his evaluation.
He was unable to obtain reliable measurements range of motion in the left shoulder and the
cervical region. The Board finds that a conflict exists in medical opinion between Dr. Shanti and

4

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

5

Id. at § 8107(c)(19).

6

20 C.F.R. § 10.404.

7

Phyllis F. Cundiff, 52 ECAB 439 (2001).

4

Dr. LeCompte concerning the extent of any additional permanent impairment to either upper
extremity due to her work-related neck injury.8
The Board will remand the case for referral of appellant for an appropriate impairment
medical examination on whether she has additional impairment of the upper extremities. After
such further development as it deems necessary, the Office shall issue a de novo decision.9
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 15, 2008 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: August 23, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8

The Board finds that appellant is not entitled to a schedule award for the cervical region. Dr. Shanti’s opinion
that she had an upper extremity impairment based on loss of range of motion conflicted with the September 7, 2006
finding of Dr. Sharp, another attending physician, that she did not demonstrate any cervical loss of range of motion
on examination.
9

As the Board has set aside and remanded the September 15, 2008 schedule award decision, the Office’s
March 30, 2009 nonmerit decision is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 19-1870
Issued: February 10, 2021

Case Submitted on the Record

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

JURISDICTION
On September 9, 2019 appellant filed a timely appeal from an August 1, 2019 merit
decision and an August 30, 2019 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of total disability, commencing May 8, 2001, causally related to her accepted employment injury;

1
2

5 U.S.C. § 8101 et seq.

The case record, as transmitted to the Board, includes evidence received after OWCP issued its August 30, 2019
decision. 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.

and (2) whether OWCP properly denied appellant’s request for reconsideration of the merits of
her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case had previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions and orders are incorporated herein by reference. The relevant facts
are as follows.
On March 21, 1989 appellant, then a 31-year-old distribution clerk, filed a traumatic injury
claim (Form CA-1) alleging that on January 5, 1989 she sustained an emotional condition when
she was robbed at gunpoint on the employing establishment’s premises while in the performance
of duty. On July 10, 1989 OWCP accepted her claim for the condition of anxiety disorder. It
subsequently accepted recurrences of total disability for periods from September 18, 1995 through
April 23, 2001. Appellant stopped work on May 8, 2001 and did not return. OWCP subsequently
expanded its acceptance of the claim to include a sleep disorder, post-traumatic stress disorder
(PTSD), anxiety, and recurrent major depression.
On July 11, 2001 appellant filed a notice of recurrence (Form CA-2a) claiming disability,
commencing May 8, 2001. OWCP initially denied the claim by decision dated June 2, 2001 and
in subsequent adjudications as set forth in the Board’s prior decisions.4 Following adjudication of
the recurrence claim, by order dated December 20, 2016,5 the Board remanded the case to OWCP
for review of appellant’s timely March 2, 2016 reconsideration request, under 5 U.S.C. § 8128(a),
to be followed by issuance of an appropriate final decision.
On remand of the case OWCP obtained a second opinion examination report regarding the
nature and extent of appellant’s emotional condition from Dr. Arwen Podesta, a Board-certified
psychiatrist. In a report dated January 24, 2017, Dr. Podesta noted his review of the medical
records and provided a history of injury and treatment. He noted that appellant had no psychiatric
issues until January 5, 1989 when she was robbed at gunpoint and subsequently diagnosed with
PTSD and that, in 2001, she felt that she could no longer function at work due to coworker
harassment. On examination Dr. Podesta observed a flat affect and low mood. Appellant informed
him of her daily suicidal thoughts, occasional nightmares, and panic attacks. Dr. Podesta
diagnosed chronic PTSD, severe recurrent major depressive disorder, generalized anxiety, and
panic disorder “initially brought on by the event at work in January 1989.” The condition
worsened with further insults and stressors in the workplace, exacerbated by the death of her
husband in December 2001. “Since then [appellant’s] condition has been such that she cannot
work. Had she had her mental faculties about her, it is unlikely that a loss, no matter how

3

Order Remanding Case, Docket No. 18-1040 (issued June 21, 2019); Order Remanding Case, Docket No. 161250 (issued December 20, 2016); Docket No. 12-0533 (issued May 3, 2012); Docket No. 11-0967 (issued October 7,
2011); Docket No. 10-0324 (issued August 13, 2010); Docket No. 08-2300 (issued July 6, 2009); Docket No. 02-0471
(issued August 26, 2002).
4

Id.

5

Order Remanding Case, Docket No. 16-1250 (issued December 20, 2016).

2

significant, would cripple her. [Appellant] is totally disabled psychiatrically.” Dr. Podesta
recommended a safety contract, to be followed by voluntary psychiatric hospitalization.
By decision dated March 22, 2017, OWCP denied modification of its prior decision
denying her claim for recurrence of disability. Pursuant to requests for reconsideration on
August 21 and December 20, 2017, it denied modification by decisions dated November 16, 2017
and April 11, 2018, respectively. Appellant then appealed to the Board.
By order dated June 21, 2019,6 the Board set aside OWCP’s April 11, 2018 decision and
remanded the case for proper consideration of all the evidence of record at the time of the April 11,
2018 decision, including Dr. Podesta’s report, to be followed by issuance of a de novo decision on
appellant’s recurrence claim.
On remand, by decision dated August 1, 2019, OWCP denied modification of the
November 16, 2017 decision, finding that Dr. Podesta had attributed appellant’s condition, on and
after May 9, 2001, to intervening causes of coworker harassment and the death of her husband,
thereby breaking the chain of causation from the accepted emotional conditions caused by the
January 5, 1989 employment injury.
On August 22, 2019 appellant requested reconsideration. She asserted that OWCP should
have requested a supplemental report from Dr. Podesta rather than denying her claim. Appellant
submitted appointment forms and group therapy treatment notes dated from June 6 to August 22,
2019 by Marvin W. Clifford, Ph.D., a social worker.
By decision dated August 30, 2019, OWCP denied appellant’s request for reconsideration
of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness, without an intervening injury or new exposure to the work environment that
caused the illness.7 Recurrence of disability also means an inability to work that takes place when
a light-duty assignment made specifically to accommodate an employee’s physical limitations due
to his or her work-related injury or illness is withdrawn, or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations.8 Absent
a change or withdrawal of a light-duty assignment, a recurrence of disability following a return to
light duty may be established by showing a change in the nature and extent of the injury-related
condition such that the employee could no longer perform the light-duty assignment.9
6

Order Remanding Case, Docket No. 18-1040 (issued June 21, 2019).

7

20 C.F.R. § 10.5(x).

8

Id.

9
G.L., Docket No. 16-1542 (issued August 25, 2017); Theresa L. Andrews, 55 ECAB 719, 722 (2004). See also
Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).

3

When an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish that the recurrence is causally related
to the original injury.10 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes that the recurrent disability is causally related to the employment
injury.11 The physician’s opinion must be based on a complete and accurate factual and medical
history and it must be supported by sound medical reasoning.12 Where no such rationale is present,
the medical evidence is of diminished probative value.13
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.14 The Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so
would essentially allow an employee to self-certify their disability and entitlement to
compensation.15
ANALYSIS -- ISSUE 1
The Board finds that the evidence of record establishes that appellant sustained a recurrence
of total disability commencing May 8, 2001, causally related to her accepted employment injury.
OWCP referred appellant to Dr. Podesta for a second opinion examination regarding
whether she had sustained a recurrence of disability, as alleged. In his January 24, 2017 report,
Dr. Podesta attributed appellant’s condition to the natural progression of the accepted emotional
conditions from her accepted January 5, 1989 employment injury. He found that her condition
had worsened with further insults and stressors in the workplace, and was exacerbated by the death
of her husband in December 2001. Dr. Podesta noted that, “Since then [appellant’s] condition has
been such that she cannot work. Had she had her mental faculties about her, it is unlikely that a
loss, no matter how significant, would cripple her. [Appellant] is totally disabled psychiatrically.”
He recommended a safety contract, to be followed by voluntary psychiatric hospitalization.
Dr. Podesta concluded that, but for appellant’s accepted conditions following her employment
injury, she would not have been fully disabled, as alleged.
It is well established that proceedings under FECA are not adversarial in nature and, while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares

10
20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5
and 2.1500.6 (June 2013).
11

H.T., Docket No. 17-0209 (issued February 8, 2019); S.S., 59 ECAB 315, 218-19 (2008).

12

Id.

13
G.L., Docket No. 19-0898 (issued December 5, 2019); E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A.
Ceglia, Docket No. 04-0113 (issued July 22, 2004).
14

See B.D., Docket No. 18-0426 (issued July 17, 2019); Amelia S. Jefferson, 57 ECAB 183 (2005).

15

Id., Fereideoon Kharabi, 52 ECAB 291 (2001).

4

responsibility in the development of the evidence.16 OWCP undertook development of the
evidence by referring appellant to Dr. Podesta, a second opinion examining physician, who opined
that appellant’s accepted emotional conditions had worsened such that she was rendered totally
disabled from work. Dr. Podesta based his opinion on a proper factual and medical history and
physical examination findings. He also provided medical rationale for his opinion that appellant
sustained a recurrence of total disability due to her employment-related emotional conditions.17
Thus, the Board finds that the evidence of record establishes that appellant sustained a
recurrence of total disability commencing May 8, 2001, causally related to her accepted
employment injury. The case shall therefore be remanded for payment of wage-loss compensation
and related medical expenses.18
CONCLUSION
The Board finds that the evidence of record establishes that appellant sustained a recurrence
of total disability commencing May 8, 2001, causally related to her accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 1 and 30, 2019 decisions of the Office of
Workers’ Compensation Programs are reversed and the case is remanded for payment.19
Issued: February 10, 2021
Washington, DC

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

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

16
See B.B., Docket No. 17-1949 (issued October 16, 2018); Donald R. Gervasi, 57 ECAB 281, 286 (2005);
William J. Cantrell, 34 ECAB 1233, 1237 (1983).
17

T.C., Docket No. 19-1383 (issued March 2 2020); see N.G., Docket No. 18-1340 (issued March 6, 2019); A.F.,
Docket No. 16-0393 (issued June 24, 2016).
18

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

19
Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board after January 20, 2021.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Pikeville, KY,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-534
Issued: June 13, 2014

Case Submitted on the Record

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

On January 9, 2014 appellant filed a timely appeal from a December 23, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his hearing loss
claim for failing to establish fact of injury. The appeal was docketed as number 14-534.
The Board has duly considered the matter and finds that the case is not in posture for
decision.1
The record before the Board indicates that appellant has three separate claims for hearing
loss due to his federal employment. On August 21, 1991 appellant filed a claim for noiseinduced hearing loss which was accepted by OWCP in claim No. xxxxxx088. He was last
exposed to employment-related noise exposure on February 1, 2007, the day he retired from his
federal employment. On January 31, 2011 appellant filed another claim for noise-induced
hearing loss in claim No. xxxxxx039. OWCP accepted claim No. xxxxxx039 for binaural
hearing loss based on the results of an August 9, 2011 audiogram. The record further indicates
that appellant previously received schedule awards for binaural hearing loss in claim
Nos. xxxxxx088 and xxxxxx039.
1

T.R., Docket No. 13-771 (issued June 25, 2013).

On June 26, 2013 appellant filed a third occupational disease claim for noise-induced
hearing loss in this claim, No. xxxxxx254.
OWCP referred appellant to Dr. William M. Parell, a Board-certified otolaryngologist,
for a second opinion evaluation and audiometric testing on September 3, 2013. In a
September 3, 2013 report, he diagnosed noise-induced sensorineural hearing loss which was due
to appellant’s federal civilian employment and in excess of what would normally be predicated
on the basis of presbycusis.
An OWCP medical adviser reviewed the claim on September 20, 2013 and stated that
appellant retired from federal employment on February 1, 2007. He stated that because appellant
was not exposed to employment-related noise since February 1, 2007 and had an audiogram
processed on August 9, 2011, after his date of retirement, that the worsening of his hearing loss
was due to presbycusis and not a result of employment-related noise exposure.
By decision dated December 23, 2013, OWCP denied appellant’s claim on the grounds
that the evidence of record failed to establish fact of injury, namely, that the occupational noise
exposure did not occur as alleged.
The Board has long recognized that, if a claimant’s employment-related hearing loss
worsens in the future, he may apply for an additional schedule award for any increased
permanent impairment. The Board has also recognized that a claimant may be entitled to a
schedule award for increased hearing loss, even after exposure to hazardous noise has ceased, if
causal relationship is supported by the medical evidence of record.2 In Adelbert E. Buzzell,3 the
Board cautioned against an OWCP medical adviser providing a blanket unrationalized statement
that hearing loss does not progress following the cessation of hazardous noise exposure.4
The Board finds that OWCP did not properly develop the factual and medical evidence in
this claim. The Board notes that appellant has established fact of injury, namely, that he was
exposed to employment-related noise. OWCP improperly relied on the medical adviser’s
blanket unrationalized statement that appellant’s employment-related hearing loss did not
progress and OWCP failed to combine appellant’s hearing loss claims. Pursuant to its
procedures, OWCP has determined that cases should be combined when correct adjudication of
the issues depends on frequent cross-reference between files. Therefore, for a full and fair
adjudication, appellant’s claims should be combined.5 On remand OWCP shall combine claim
Nos. xxxxxx088, xxxxxx039 and xxxxxx254 and refer appellant and the case file to a second
opinion otolaryngologist for a fully-rationalized opinion regarding whether appellant developed
2

J.R., 59 ECAB 710, 713 (2008).

3

34 ECAB 96 (1982).

4

The Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(3)
(January 2010) notes that, if the progression of a noise-induced hearing loss is to be denied, the medical adviser
must provide a well-reasoned opinion.
5

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

2

increased hearing loss as a result of his federal employment noise exposure.6 Following this and
any other further development deemed necessary, OWCP shall issue an appropriate merit
decision on appellant’s occupational disease claim.
IT IS HEREBY ORDERED THAT the December 23, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: June 13, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

Supra note 1.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
DEPARTMENT OF THE AIR FORCE, SCOTT
AIR FORCE BASE, IL, Employer
__________________________________________

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

Docket No. 08-2138
Issued: February 5, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 30, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated July 7, 2008, which denied her request for an
oral hearing on the grounds that it was untimely. Because more than one year has elapsed from
the last merit decision dated August 4, 2000, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for a hearing as
untimely filed.
FACTUAL HISTORY
On May 22, 2000 appellant then a 57-year-old medical records file clerk, filed an
occupational disease claim alleging that she sustained carpal tunnel syndrome from repetitive
work with her hands, arms and wrists.

In an August 4, 2000 decision, the Office denied appellant’s claim for compensation on
the grounds that the evidence of record was insufficient to establish a causal relationship between
an identified employment factor and the diagnosed medical condition.
On June 14, 2004 appellant requested a copy of her record which was forwarded to her
by the Office on June 18, 2004. In a June 28, 2004 letter, she stated that there was a decision
letter “dated 4 August 2004” attached to the Office’s June 18, 2004 cover letter and asked the
Office to advise her on how she could get the present case reopened. An Office claims examiner
explained that the decision was issued in 2000, and the Office could not consider new
information because appellant’s appeal rights had been exhausted.
By a September 25, 2004 letter, appellant requested an oral hearing.
In a November 22, 2004 decision, the Office denied appellant’s request for a hearing as
untimely and stated that the issue could be equally well addressed by requesting reconsideration.
Its November 22, 2004 decision, sent to appellant’s address of record, was returned on
December 15, 2004 and marked “address not known.”
On July 7, 2008 appellant called the Office to inquire about the case stating that she was
never contacted regarding the hearing. She verified that the Office had her correct address on
file.
On July 7, 2008 the Office reissued its November 22, 2004 decision.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act and its implementing regulations, a
claimant who has received a final adverse decision by the Office is entitled to a hearing by
writing to the address specified in the decision within 30 days (as determined by postmark or
other carrier’s date marking) of the date of the decision for which a hearing is sought.1 If the
request is not made within 30 days or if it is made after a reconsideration request, a claimant is
not entitled to a hearing or a review of the written record as a matter of right.2
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.3 The Office’s procedures, which require the

1

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

Teresa Valle, 57 ECAB 542 (2006).

3

Bettye Richardson, 59 ECAB ___ (Docket No. 08-693, issued August 19, 2008); Marilyn Wilson, 52 ECAB 347
(2001) (the Office has discretion to grant or deny a request made after the 30-day period, and the Office will
determine whether a discretionary hearing should be granted).

2

Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.4
ANALYSIS
The Office issued its decision denying appellant’s claim on August 4, 2000. Appellant’s
September 25, 2004 request for an oral hearing is postmarked September 25, 2004, more than
four years after the initial decision had been issued. Because the September 25, 2004 request
was over 30 days after the August 4, 2000 decision, the Board finds that the Office properly
denied appellant’s request for a hearing as untimely filed.5
Appellant, on appeal, asserts that she never received the Office’s November 22, 2004
decision. The record supports that, despite being properly addressed, this decision was returned
to the Office as undeliverable. However, this did not adversely affect appellant’s ability to
appeal that decision to the Board as the Office reissued this decision on July 7, 2008, after which
appellant filed the present appeal.
Although the Office properly determined that appellant’s request was untimely, it
nevertheless exercised its discretion by further considering her request for a review of the written
record. It determined that appellant could equally well pursue her claim by submission of a
request for reconsideration along with new evidence. Accordingly, the Board finds that the
Office also properly exercised its discretion in denying appellant’s request for a review of the
written record.
Thus, the Board finds that the Office’s denial of appellant’s request for an oral hearing
was proper under the law and the facts of this case.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for an oral hearing as
untimely.

4

P.B., 59 ECAB ___ (Docket No. 08-839, issued October 15, 2008); Teresa Valle, supra note 2.

5

See supra note 2.

3

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 7, 2008 is affirmed.
Issued: February 5, 2009
Washington, DC

David S. Gerson, 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
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, GRAND CENTRAL
STATION POST OFFICE, New York, NY,
Employer
__________________________________________

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

Docket No. 07-2309
Issued: June 4, 2008

Case Submitted on the Record

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

JURISDICTION
On September 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated March 26 and July 12, 2007, denying
modification of her wage-earning capacity determination. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that her
August 9, 2004 wage-earning capacity should be modified.
FACTUAL HISTORY
On December 12, 1999 appellant, then a 54-year-old modified carrier technician, filed a
claim (Form CA-2a) alleging that she sustained a recurrence of disability on November 29, 1999

causally related to her March 13, 1993 and April 29, 1997 employment-related injuries.1 She
stated that her accepted employment injuries were aggravated by continuously carrying mail. By
letter dated April 13, 2000, the Office advised appellant that her recurrence of disability claim
would be treated as a claim for a new injury as she cited intervening work factors. On
October 20, 2000 the Office accepted the claim for right lateral epicondylitis, radial tunnel
syndrome and right shoulder derangement and authorized arthroscopic right shoulder surgery
which was performed on November 21, 2000. The Office later authorized right elbow surgery
which was performed on October 14, 2002.
On April 23, 2003 the employing establishment offered appellant a modified carrier
technician position effective that date based on the February 20, 2003 restrictions set forth by
Dr. Jonathan C. Gordon, an attending orthopedic surgeon.2 By letter dated April 22, 2003, the
Office advised appellant that the offered position was suitable work within her medical
restrictions and the employing establishment confirmed that the position remained available to
her.
On April 28, 2003 appellant accepted the employing establishment’s job offer. She
returned to work on May 27, 2003.
By decision dated August 9, 2004, the Office found that appellant’s actual wages as a
modified carrier technician fairly and reasonably represented her wage-earning capacity, finding
that she had no loss of wage-earning capacity with weekly wages of $871.73.
On August 16, 2006 the Office received appellant’s August 8, 2006 CA-2a form alleging
a recurrence of disability beginning July 17, 2006 causally related to her March 13, 1993
employment injury. She stopped work on July 31, 2006. By letter dated September 12, 2006,
the Office addressed the factual and medical evidence appellant needed to support her claim.3
Appellant submitted Dr. Gordon’s August 16, 2006 report which stated that she sustained
a right rotator cuff injury. Dr. Gordon believed that repetitive motion in the shoulder caused the
recurrence of disability. He opined that appellant could no longer case mail.
In an October 12, 2006 report, Dr. Gordon opined that appellant sustained a recurrence of
the March 13, 1993 employment injury on July 17, 2006. He stated that she sustained a right
shoulder injury. Dr. Gordon opined that appellant was totally disabled from October 12 through
November 9, 2006.
1

The record reveals that the Office accepted appellant’s claim for a March 13, 1993 injury for a right shoulder
condition. The claim for her April 29, 1996 employment injury was accepted for a contusion of the right elbow.
2

In his February 20, 2003 report, Dr. Gordon stated that appellant had reached maximum medical improvement.
He opined that she could return to work with restrictions. Appellant was restricted from performing any type of
work that put extra strain on her right elbow. She could not lift more than 10 pounds, tie or bundle boxes or engage
in any pronation or supination activity with her elbow that required excessive force. Dr. Gordon recommended that
appellant be retrained for a job that involved light sorting or desk work. In an April 1, 2003 work capacity
evaluation, Dr. Gordon indicated that she could not push or pull more than 10 pounds. Appellant could squat, kneel
and climb four hours per day.
3

The Office stated that the date of injury was November 29, 1999.

2

By decision dated October 17, 2006, the Office found that appellant did not sustain a
recurrence of disability beginning July 17, 2006 causally related to her November 29, 1999
employment injuries. The evidence of record did not establish a change in the nature and extent
of her employment-related conditions or in her limited-duty job requirements.
In an October 30, 2006 letter, appellant requested a review of the written record by an
Office hearing representative. She submitted form reports dated October 14, 2000 of
Dr. Stephen F. Scarange, a Board-certified orthopedic surgeon, which diagnosed
acromioclavicular (AC) arthritis and subcromial bursitis, muscle strain, right elbow epicondylitis
and right wrist contusion. Dr. Scarange indicated with an affirmative mark that the diagnosed
conditions were caused or aggravated by appellant’s March 19, 1993, April 29, 1996, August 18,
1997 and January 12, 1998 employment-related injuries.4 He stated that she was totally disabled
from May 19, 1999 through April 29, 2004.
In a January 10, 2003 form report, Dr. Gordon indicated with an affirmative mark that
appellant’s tennis elbow was caused or aggravated by an employment activity. He stated that she
was totally disabled from October 2002 through March 9, 2003. In reports dated November 4
and December 2 and 23, 2005, Dr. Gordon listed appellant’s restrictions.
On January 25, 2007 Dr. Gordon prescribed physical therapy. Also on January 25, 2007
he stated in a report that appellant had rotator cuff tear and that she was totally disabled from
January 25 through March 8, 2007.
By decision dated March 26, 2007, an Office hearing representative affirmed the
October 17, 2006 decision as modified. She found that the proper issue in the case was whether
the August 9, 2004 loss of wage-earning capacity determination should be modified. The
hearing representative found that appellant’s recurrence of disability claim was based on a
worsening of her accepted employment-related conditions. She determined that appellant failed
to establish a material change in the nature and extent of her November 29, 1999 employmentrelated conditions.
Appellant submitted reports covering intermittent dates from February 16 to June 4, 2007
from Brenda Beckmann and Aimee Sesaldo, physical therapists, which addressed the treatment
of her right shoulder condition.
In an April 5, 2007 report, Dr. Gordon reiterated that appellant had right shoulder rotator
cuff tear. He opined that she was totally disabled from April 5 through May 10, 2007. Also on
April 5, 2007 Dr. Gordon prescribed physical therapy.
In a May 29, 2007 letter, appellant requested reconsideration of the March 26, 2007
decision. She submitted Dr. Gordon’s May 31, 2007 form report which stated that she was
totally disabled from May 31 to June 4, 2007. Dr. Gordon indicated that appellant could resume
limited-duty work with restrictions from June 5 through July 25, 2007. Also on May 31, 2007 he
stated in a narrative report that appellant was being treated for a right shoulder injury that was a
4

Appellant’s claim for the August 18, 1997 and January 12, 1998 employment injuries were accepted for right
shoulder sprain. Her claim for the May 19, 1999 employment injury was accepted for a contusion of the right wrist.

3

recurrence of her November 29, 1999 employment injuries. Dr. Gordon noted that she reinjured
her shoulder on July 17, 2006 while performing modified work. He opined that the recurrence of
disability was directly related to the accepted employment injuries. Dr. Gordon released
appellant to return to work on June 5, 2007. In a March 8, 2007 report, he stated that appellant
would be totally disabled from that date through April 5, 2007.5 Ms. Beckmann, Ms. Sesaldo
and Thomas Delviscio, a physical therapist, treated appellant on June 7 and 25, 2007.
By decision dated July 12, 2007, the Office denied modification of the March 26, 2007
decision. It found that appellant failed to establish a material change in the nature and extent of
her November 29, 1999 employment-related injuries and limited-duty job requirements.6
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.7
Once the loss of wage-earning capacity is determined, a modification of such
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated
or the original determination was, in fact, erroneous.8 The burden of proof is on the party
attempting to show modification of the award.9
ANALYSIS
After her November 29, 1999 employment injuries, which the Office accepted for right
lateral epicondylitis, radial tunnel syndrome and right shoulder derangement, appellant returned
to work as a modified carrier technician at the employing establishment. On August 9, 2004 the
Office found that her actual earnings from this employment over a period of time demonstrated
her wage-earning capacity.
On July 31, 2006 appellant stopped work and claimed compensation for total disability
beginning on July 17, 2006. Because a formal decision of appellant’s loss of wage-earning
capacity was in place, the Office properly adjudicated the case as a request for modification of
5

It appears that Dr. Gordon inadvertently stated that appellant was totally disabled beginning March 8, 2002
rather than March 8, 2007.
6

Following the Office’s July 12, 2007 decision, appellant submitted additional evidence. The Board may not
consider evidence for the first time on appeal which was not before the Office at the time it issued the final decision
in the case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and request reconsideration.
5 U.S.C. § 8128; 20 C.F.R. § 10.606.
7

See Katherine T. Kreger, 55 ECAB 633 (2004).

8

Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000).

9

Harley Sims, Jr., 56 ECAB 320 (2005); Stanley B. Plotkin, supra note 8.

4

her loss of wage-earning capacity.10 She has the burden of proof to submit evidence sufficient to
establish a material change in the nature and extent of her injury-related conditions.11 Appellant
has not met her burden of proof.
None of the medical evidence submitted by appellant establishes that her right lateral
epicondylitis, radial tunnel syndrome and right shoulder derangement had materially worsened
on July 17, 2006 to the point that she could no longer earn wages after July 31, 2006.
Dr. Gordon’s August 16 and October 12, 2006 reports stated that appellant sustained a
recurrence of disability beginning July 17, 2006 causally related to her March 13, 1993 and
November 29, 1999 employment-related right shoulder condition. He stated that repetitive
motion in the shoulder caused the alleged recurrence of disability. On October 12, 2006
Dr. Gordon opined that appellant could no longer case mail. In neither report did Dr. Gordon
provide any rationale explaining how or why appellant’s right shoulder condition worsened or
caused disability for work as of July 17, 2006. His statement on causal relationship was
conclusory in nature.
Dr. Gordon’s May 31, 2007 report stated that appellant sustained a recurrence of
disability beginning July 17, 2006 causally related to her November 29, 1999 employmentrelated injuries. This evidence does not address how appellant’s accepted November 29, 1999
employment injuries worsened or caused disability for work as of July 17, 2006. Similarly,
Dr. Gordon’s January 25 and April 5, 2007 prescriptions for physical therapy failed to address
how appellant’s accepted November 29, 1999 employment injuries worsened or caused disability
for work as of July 17, 2006.
Dr. Gordon’s January 25, March 8, April 5 and May 31, 2007 reports stated that appellant
had a rotator cuff tear. He further stated that she was totally disabled from January 25 through
March 8, April 5 through May 10 and May 31 through June 4, 2007, respectively. Dr. Gordon
did not provide an adequate discussion of how appellant’s condition worsened during
intermittent periods from January 25 through June 4, 2007 such as to cause her disability for
work.
Dr. Scarange’s October 14, 2000 form report stated that appellant sustained AC arthritis
and subcromial bursitis, muscle strain, right elbow epicondylitis and right wrist contusion. He
indicated with an affirmative mark that the diagnosed conditions were caused or aggravated by
her April 29, 1996, August 18, 1997, January 12, 1998 and May 19, 1999 employment-related
injuries. Dr. Scarange stated that appellant was totally disabled from May 19, 1999 through
April 29, 2004. Similarly, in a January 10, 2003 form report, Dr. Gordon indicated with an
affirmative mark that appellant’s tennis elbow was caused or aggravated by an employment
activity. He stated that she was totally disabled from October 2002 through March 9, 2003. In
10

Katherine T. Kreger, supra note 7; Sharon C. Clement, 55 ECAB 552 (2004); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.9(a)
(December 1995).
11

The Board notes that appellant is not claiming that she has been retrained or vocationally rehabilitated, and she
does not seek reconsideration of the August 9, 2004 determination of wage-earning capacity on the grounds that it
was in error.

5

reports dated November 4 and December 2 and 23, 2005, Dr. Gordon listed appellant’s
restrictions. The reports of Dr. Scarange and Dr. Gordon are not relevant to the issue in this case
of whether the August 9, 2004 wage-earning capacity determination should be modified as they
predate July 17, 2006, the date of the alleged worsening of appellant’s employment-related
conditions.
The reports from appellant’s physical therapists do not constitute probative medical
evidence inasmuch as a physical therapist is not a “physician” as defined under the Federal
Employees’ Compensation Act.12
Appellant has not submitted sufficiently rationalized medical evidence establishing a
material change in the nature and extent of her employment-related conditions.13
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that
modification of the August 9, 2004 wage-earning capacity determination is warranted.
ORDER
IT IS HEREBY ORDERED THAT the July 12 and March 26, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 4, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

12

5 U.S.C. § 8101(2); Vickey C. Randall, 51 ECAB 357, 360 (2000) (a physical therapist is not a physician under
the Act).
13

Stanley B. Plotkin, supra note 8.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
HOSPITAL, Great Lakes, IL, Employer
__________________________________________

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

Docket No. 07-436
Issued: April 24, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On December 6, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 6, 2006 nonmerit decision denying her request for further
review of the merits of her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over this nonmerit decision. The most recent merit decision of record was the
Office’s August 25, 2005 decision denying her claim for a June 2, 2005 injury. Because more
than one year has elapsed between the last merit decision and the filing of this appeal on
December 6, 2006, the Board lacks jurisdiction to review the merits of this claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
On June 8, 2005 appellant, then a 48-year-old information receptionist, filed a traumatic
injury claim alleging that she sustained injury to her back, right hip, right leg and toes on June 2,
2005 when the plastic foot rest of a stool she was sitting on broke while she was resting her feet.
On July 25, 2005 Dr. Reuben R. Weisz, an attending Board-certified neurologist,
indicated that appellant reported that she fell at work on June 2, 2005. He diagnosed
lumbosacral radiculopathy due to the reported employment injury and indicated that she was
totally disabled from June 27 to July 28, 2005. Appellant also submitted unsigned reports, dated
June 27, July 7 and 28, 2005, on the letterhead of Dr. Weisz.2 On August 15, 2005 Dr. Manfred
Mann, an attending Board-certified family practitioner, indicated that appellant reported that she
fell at work when a foot stool broke in half. He stated that she should be on total disability until
August 31, 2005.
In an August 25, 2005 decision, the Office denied appellant’s claim on the grounds that
she did not submit sufficient medical evidence to establish that she sustained an injury on June 2,
2005 in the performance of duty.
In a letter dated August 23, 2006 and postmarked August 26, 2006, appellant requested
reconsideration of her claim. She argued that she suffered an injury when a plastic foot stool she
was sitting on broke in half, her feet fell to the floor and her head jerked forward and fell into a
counter.
In a September 6, 2006 decision, the Office denied appellant’s request for further review
of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file her application for review within one year of the date of that decision.3 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted the Office under section 8128(a) of the Federal Employees’
Compensation Act.4
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
2

On August 16, 2005 Dr. Weisz diagnosed lumbosacral radiculopathy and lumbosacral spondylosis and
recommended work restrictions.
3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989). If submitted by mail, a reconsideration
request will be deemed timely if postmarked by the U.S. Postal Service within one year from the Office’s decision
for which review is sought. 20 C.F.R. § 10.607(a).

2

establishes “clear evidence of error.”5 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.7 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.11 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.12
ANALYSIS
Appellant filed a traumatic injury claim alleging that she sustained injury to her back,
right hip, right leg and right toes on June 2, 2005 when the plastic foot rest of a stool she was
sitting on broke while she was resting her feet. In an August 25, 2005 decision, the Office
denied appellant’s claim on the grounds that she did not submit sufficient medical evidence to
establish that she sustained an injury on June 2, 2005 in the performance of duty. In a
September 6, 2006 decision, the Office denied appellant’s request for further review of the merits
of her claim on the grounds that her request was untimely filed and failed to demonstrate clear
evidence of error.

5

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

6

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedure further provides, “The term ‛clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the [Office] made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-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.” Id. at Chapter 2.1602.3c.
7

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

8

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

9

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

10

See Leona N. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

12

Leon D. Faidley, Jr., supra note 4.

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In its September 6, 2006 decision, the Office properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request was filed on
August 26, 2006 as her August 23, 2006 reconsideration letter was postmarked on that date.13
This filing was more than one year after the Office’s August 25, 2005 decision, and therefore
appellant must demonstrate clear evidence of error on the part of the Office in issuing this
decision.
Appellant has not demonstrated clear evidence of error on the part of the Office in issuing
its August 25, 2005 decision. She did not submit the type of positive, precise and explicit
evidence which manifests on its face that the Office committed an error.
In connection with appellant’s untimely reconsideration request, she argued that she
sustained an injury when a plastic foot stool she was sitting on broke in half, her feet fell to the
floor, and her head jerked forward and fell into a counter. Her statement that she believed she
sustained an employment injury on June 2, 2005 is not sufficient to establish that the Office
committed clear error in its prior decision. Appellant’s argument would not be relevant in that
the main issue of the present case is medical in nature and should be resolved by the submission
of medical evidence. She has not shown that the Office committed clear error when it
determined that she had not submitted sufficient medical evidence to establish her claim.
For these reasons, the argument submitted by appellant does not raise a substantial
question concerning the correctness of the Office’s August 25, 2005 decision and the Office
properly determined that she did not show clear evidence of error in that decision.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

13

See supra note 3 indicating that the existence of a postmark in the record means that the reconsideration request
would be deemed as filed on the date of the postmark.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 6, 2006 decision is affirmed.
Issued: April 24, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5