United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTHPORT VETERANS HOSPITAL,
Northport, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1441
Issued: October 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 4, 2013 appellant, through counsel, filed a timely appeal from a May 3, 2013
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration as it was not timely filed and failed to establish clear evidence of
error. Because more than 180 days has elapsed between the last merit decision dated
November 9, 2011 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3. The Board has jurisdiction to review the May 3, 2013 nonmerit decision.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In an August 25, 1997 decision, the
Board set aside decisions of OWCP dated February 15, April 14 and August 19, 1994.2 The
Board found the evidence of record sufficient to warrant further development as to whether
appellant sustained a recurrence of disability beginning November 29, 1993 causally related to
her accepted April 13, 1992 employment injury.3 On July 24, 2001 the Board found an
unresolved conflict in the medical opinion evidence as to whether appellant sustained a
recurrence of disability beginning November 29, 2003.4 The Board set aside OWCP’s
February 1, 1999 decision and remanded the case for further development. In a decision of
July 16, 2009, the Board affirmed a January 17, 2008 overpayment decision.5 On June 10, 2010
the Board issued an order remanding the case and setting aside a June 30, 2009 nonmerit
decision.6 The Board found that OWCP erred in denying further merit review of appellant’s
request for modification of a November 22, 2006 loss of wage-earning capacity decision. On
November 9, 2011 the Board affirmed a November 29, 2010 decision denying modification of a
loss of wage-earning capacity decision.7 The Board also reversed a September 10, 2009 OWCP
decision terminating appellant’s compensation benefits under 5 U.S.C. § 8106(c). The Board
found that OWCP failed to meet its burden of proof to establish that appellant refused an offer of
suitable work. The history of the case as provided in the Board’s prior decisions is incorporated
herein by reference.
On September 12, 2012 appellant’s counsel requested modification of the November 22,
2006 loss of wage-earning capacity decision, contending that the original determination was in
error. He argued that OWCP erred in relying upon the opinion of an impartial medical examiner
as his opinion was speculative and failed to consider preexisting and nonwork-related
impairments in determining her work capability. Appellant also submitted medical evidence that
she contended showed a material change in her condition.
In a February 6, 2013 letter, counsel again requested modification of the November 22,
2006 loss of wage-earning capacity decision.
By decision dated May 3, 2013, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

2

Docket No. 95-619 (issued August 25, 1997).

3

On April 24, 1992 appellant, then a 26-year-old respiratory therapist, filed a traumatic injury claim alleging that
she injured her back while lifting a patient on April 13, 1992. OWCP accepted the claim for cervical and
lumbosacral sprains and herniated disc at L3-4 and L4-5.
4

Docket No. 99-1516 (issued July 24, 2001).

5

Docket No. 08-1157 (issued June 16, 2009).

6

Docket No. 09-1977 (issued June 10, 2010).

7

Docket Nos. 11-514 & 11-654 (issued November 9, 2011).

2

LEGAL PRECEDENT
It is well established that either a claimant or OWCP may seek to modify a formal LWEC
determination. Once the wage-earning capacity of an injured employee is determined, a
modification of such determination is not warranted unless there is a material change in the
nature and extent of the injury-related condition, the employee has been retrained or otherwise
vocationally rehabilitated or the original determination was, in fact, erroneous.8 The burden of
proof is on the party attempting to show a modification.9 There is no time limit for appellant to
submit a request for modification of a wage-earning capacity determination.10
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP erred in considering appellant’s September 12, 2012 letter as a request for
reconsideration of the November 22, 2006 loss of wage-earning capacity determination under
5 U.S.C. § 8128(a). It found the request untimely and that she did not submit evidence or legal
argument to establish clear evidence of error. The Board notes that appellant sought
modification of the November 22, 2006 loss of wage-earning capacity determination. Appellant
submitted argument and medical evidence in support of her contention that OWCP erred in its
November 22, 2006 wage-earning capacity determination and that her condition had worsened
since the decision was issued. The Board finds that appellant’s September 12, 2012 letter is a
request for modification of OWCP’s November 22, 2006 wage-earning capacity determination.11
OWCP improperly characterized the November 12, 2012 letter as a request for reconsideration
subject to the one-year time limitation set forth at 20 C.F.R. § 10.607(a). Appellant is entitled to
a merit review on that issue.12 On remand, OWCP shall adjudicate her request for modification
of the loss of wage-earning capacity determination and issue an appropriate decision.
CONCLUSION
The Board finds that appellant requested modification of the November 22, 2006 loss of
wage-earning capacity determination and is entitled to a merit review of that issue. The case will
be remanded to OWCP for all necessary development and issuance of an appropriate decision.

8

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375 (2000).

9

Id.

10

Gary L. Moreland, 54 ECAB 638 (2003). See also Daryl Peoples, Docket No. 05-462 (issued July 19, 2005),
Emmit Taylor, Docket No. 03-1780 (issued July 21, 2004) (in Peoples and Taylor, the Board determined that the
claimants’ requests for reconsideration of a loss of wage-earning capacity determination constituted a request for
modification requiring a merit review. In both cases, the Board set aside OWCP’s decisions denying appellant’s
reconsideration requests as untimely and failing to establish clear evidence of error and remanded the cases for
OWCP to address the merits of their requests for modification of an LWEC decision).
11

See Gary L. Moreland, id.

12

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 3, 2013 is set aside and the case remanded for further
consideration consistent with the above decision of the Board.
Issued: October 25, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, St. Rose, LA, Employer
__________________________________________

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

Docket No. 09-1947
Issued: April 13, 2010

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 27, 2009 appellant, through her attorney, filed a timely appeal from a July 1,
2009 merit decision of the Office of Workers’ Compensation Programs denying her traumatic
injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant established that she sustained a left knee injury on
September 11, 2008 in the performance of duty, as alleged.
FACTUAL HISTORY
On November 19, 2008 appellant, then a 51-year-old transportation security officer, filed
a traumatic injury claim (Form CA-1) alleging that on September 11, 2008 she twisted her left
knee while conducting a physical pat down of a passenger. She claimed that she knelt down to
complete the screening, with her left knee on the floor, and that she twisted her left knee when

she stood up. The employing establishment controverted the claim stating that appellant did not
report the injury until five weeks later and after her knee began hurting at the gym. It noted that
there were no witnesses to the claimed incident.1
By letter dated November 21, 2008, the Office advised appellant of the deficiencies in her
claim and requested that she provide additional factual and medical evidence.
In a November 7, 2008 medical report, Dr. Eileen C. Lynch-Ballard, a Board-certified
pediatrician, general, reported appellant’s statement that on September 11, 2008 she twisted her
knee at work while standing up. Appellant’s pain began gradually and she did not seek medical
treatment for nearly two months. Physical examination revealed mild swelling of the
suprapatellar, prepatellar and popliteal areas and an antalgic gait favoring the left leg. Range of
motion of the knee was normal but with pain and palpation revealed tenderness of the lateral
patellar joint line and popliteal areas. Dr. Lynch-Ballard diagnosed knee pain, knee strain and
knee lateral collateral ligament strain. She stated that appellant sustained a musculoskeletal
injury requiring physical therapy. Dr. Lynch-Ballard placed appellant on light duty and provided
work restrictions. In medical reports dated November 14 through December 12, 2008, she
continued to report appellant’s complaints of pain, which was improving through physical
therapy and treatment. Dr. Lynch-Ballard diagnosed knee strain and pain and noted limited
range of motion of the knee and tenderness to palpation on examination. She continued to place
appellant on light duty and provide work restrictions.
Appellant further submitted a December 5, 2008 report from a physical therapist
addressing her left knee condition.
By decision dated December 22, 2008, the Office denied appellant’s claim on the
grounds that she did not submit sufficient factual or medical evidence to establish that she
sustained an injury on September 11, 2008.
In medical reports dated December 19, 2008 and January 7, 2009, Dr. Lynch-Ballard
reported appellant’s continuing complaints of left knee pain, which were gradually resolving
with physical therapy. She continued to provide work restrictions and placed appellant on light
duty. On December 30, 2008 Dr. Lynch-Ballard stated that appellant’s left knee symptoms were
slowly improving but that she was experiencing left foot pain, which appellant attributed to
favoring the right knee after the left knee injury. She diagnosed left foot sprain, disruption of the
medial arch and resolving left knee injury. Dr. Lynch-Ballard subsequently diagnosed bilateral
arch pain of the feet. She opined that, within a reasonable degree of medical probability, the
diagnosed conditions were causally and proximately related to appellant’s work-related injury.
Dr. Lynch-Ballard stated that the mechanism of injury and the description of the incident were
consistent and that it was more likely than not that the diagnoses were the result of the workrelated injury.
In a December 16, 2008 statement, appellant claimed that she injured her left knee after
rising from a kneeling stance for a pat down at work on September 11, 2008. She contended that
1

Appellant previously filed claims for a June 15, 2004 right shoulder injury, under Office file number
xxxxxx067, and an October 13, 2006 left shoulder injury, under Office file number xxxxxx799.

2

she did not immediately seek medical attention because she believed her pain would eventually
subside and she did not want another work-related injury.
On June 12, 2009 the employing establishment submitted a statement controverting
appellant’s claim primarily due to her delay in filing. It submitted a November 6, 2008 statement
from appellant’s supervisor, who stated that appellant previously mentioned that she had hurt her
knee while bending during a pat down.
On January 7, 2009 appellant, through her attorney, filed a request for a telephonic
hearing before an Office hearing representative. The hearing took place on April 16, 2009 where
appellant testified regarding the factual circumstances of her alleged employment injury.
By decision dated July 1, 2009, an Office hearing representative affirmed the
December 22, 2008 decision as modified. She found that appellant’s statements were consistent
with those of her supervisor and that she adequately explained her reasons for the delay in filing
her claim. Thus, appellant established that the September 11, 2008 incident occurred as alleged.
However, the Office hearing representative also found that the medical evidence was still
insufficient to establish the claim as Dr. Lynch-Ballard did not provide an opinion that
appellant’s knee condition was related to her employment.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,3 including that she is an “employee” within the meaning of
the Act4 and that she filed her claim within the applicable time limitation.5 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must 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 or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
4

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
6

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

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

3

evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
ANALYSIS
The Office accepted that on September 11, 2008 appellant twisted her left knee while
conducting a pat down in her capacity as a transportation security officer. The issue is whether
she sustained a causally-related injury. The Board finds appellant has not met her burden of
proof.
In support of her claim, appellant submitted medical reports dated November 7, 2008
through January 7, 2009 from Dr. Lynch-Ballard. On November 7, 2008 Dr. Lynch-Ballard
reported appellant’s statement that she twisted her knee on September 11, 2008 and that she
experienced a gradual onset of pain. She diagnosed left knee pain, strain and lateral collateral
ligament strain. In a December 30, 2008 report, Dr. Lynch-Ballard stated that appellant was
experiencing foot pain as a consequence of her left knee injury and provided additional
diagnoses of left foot sprain, disruption of the medial arch and resolving left knee injury. She
opined that, with a reasonable degree of medical probability, the diagnosed conditions were
causally and proximately related to appellant’s work-related injury. Dr. Lynch-Ballard stated
that the mechanism of injury and the description of the incident were consistent and more likely
than not the diagnosed conditions were the result of the work-related injury.
The Board finds that Dr. Lynch-Ballard’s reports are insufficient to establish appellant’s
claim. Although Dr. Lynch-Ballard opined that appellant’s diagnosed conditions were related to
her work-related injury, she did not provide any rationale to support her findings of causal
relationship. She did not specifically describe how the mechanism of standing up after a pat
down caused appellant’s left knee condition. It is not clear how Dr. Lynch-Ballard found that
appellant’s condition was caused by her employment, particularly in light of the fact that she did
not treat appellant until several months after the September 11, 2008 employment incident. As
she did not provide a rationalized medical opinion describing how appellant sustained a left knee

8

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
9

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

4

condition due to the September 11, 2008 incident, her opinion on causation is of diminished
probative value.10
The only other medical evidence of record is a December 5, 2008 report from a physical
therapist. As a physical therapist is not included in the definition of a physician under the Act,
this report is also of diminished probative value.11
CONCLUSION
The Board finds that appellant did not establish that she sustained a left knee injury on
September 11, 2008 in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the July 1, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 13, 2010
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

10

See G.G., 58 ECAB 389 (2007); Victor J. Woodhams, id.

11

Under section 8101(2), the definition of a physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2). See also Jerre R. Rinehart, 45 ECAB 518 (1994).

5


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

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

Docket No. 21-0132
Issued: May 12, 2021

Case Submitted on the Record

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

On November 2, 2020 appellant filed a timely appeal from an April 23, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned the appeal Docket No. 21-0132.
The Board, having duly considered the matter, concludes that the appeal docketed as No.
21-0132 must be dismissed. The Board’s jurisdiction is limited to the review of final adverse
OWCP decisions issued under the Federal Employees’ Compensation Act (FECA).1 The case
record as transmitted to the Board does not contain a final adverse decision of OWCP issued within
180 days from the date of docketing of the current appeal.2
The 180th day following the April 23, 2020 OWCP decision, which granted appellant a
schedule award for seven percent permanent impairment of the left upper extremity in a claim

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a).

2
Id. at § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of
issuance of a decision of OWCP.”

assigned OWCP File No. xxxxxx225, was October 20, 2020.3 As appellant did not file an appeal
with the Board until November 2, 2020, more than 180 days after the April 23, 2020 schedule
award decision, the Board finds that the appeal docketed as No. 21-0132 is untimely filed. The
Board is, therefore, without jurisdiction to review the appeal of the April 23, 2020 decision.
Appellant has not offered a reason to explain her failure to timely file an appeal with supporting
documentation sufficient to establish compelling circumstances.
For the foregoing reasons, the Board finds that there is no final adverse OWCP decision
over which the Board may properly exercise jurisdiction, the Board concludes that the appeal
docketed as No. 21-0132 must be dismissed.
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0132 is dismissed.
Issued: May 12, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

On April 16, 2020 OWCP administratively combined OWCP File Nos. xxxxxx061 and xxxxxx225 with the latter
designated as the master file.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 14-95
Issued: May 22, 2014

Case Submitted on the Record

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

JURISDICTION
On October 22, 2013 appellant filed a timely appeal from the July 31, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation pursuant to
5 U.S.C. § 8123(d) for obstructing an OWCP-directed medical examination.
FACTUAL HISTORY
On May 10, 1991 appellant, a 50-year-old regular mail handler, filed an occupational
disease claim alleging that her carpal tunnel syndrome was a result of repetitive activities in her
federal employment. OWCP accepted her claim for bilateral carpal tunnel syndrome. On
1

5 U.S.C. § 8101 et seq.

December 22, 2000 it granted appellant schedule awards for 72 percent impairment of her left
arm and 58 percent impairment of her right arm.
On January 21, 2013 OWCP referred appellant to Dr. Robert A. Smith, a Board-certified
orthopedist, for a second opinion evaluation on the extent of her permanent impairment. It
notified appellant that, if she obstructed the examination scheduled for February 1, 2013, her
benefits would be suspended in accordance with 5 U.S.C. § 8123(d):
“If an employee refuses to submit to or obstructs an examination, his right to
compensation under this subchapter is suspended until the refusal or obstruction
stops. Compensation is not payable while a refusal or obstruction continues, and
the period of the refusal or obstruction is deducted from the period for which
compensation is payable to the employee.”
Dr. Smith advised OWCP that appellant appeared on time for her examination; however,
she refused to fill out or sign the short intake form and became belligerent with the staff.
“Therefore, the encounter was terminated and she left. Appellant was never examined because
of failure to fill out our one[-]page intake form or sign the examination consent form and her
belligerent nature.”
Appellant telephoned OWCP to report that she was given paperwork to complete and
sign, but she refused. She contended that the physician should have already known the answers
to the questions. Appellant was then told that Dr. Smith would not examine her. She considered
possibly completing and signing the questionnaire, but she was told that the specialist would not
see her because she had refused.
Appellant wrote OWCP to explain further. She thought the referral was “asinine” and
that she was apprehensive because others had told her such evaluations were never favorable.
Also, appellant had a virus.
“When I arrived at the office I was asked to sign (2) papers I signed one paper
which I understood to be a HIPAA form. The other form was a patient
information form which I opted not to sign because I felt that the information
requested on the form should have been sent to the doctor to read before I saw
him and I stated that to the person who did my intake. Her response to me was
that I should sign it and leave the questions blank. I opted not to do this, because
why would I leave blank spaces on a form for a doctor to fill in if I don’t think
that he will act in my best interest? At this time the female intake person went
into a back room and came out and told me that I was free to go because I had not
signed the form and the doctor would not see me. At this point I said that I would
sign the form so that I would not have wasted a day coming to the office. This
person did not respond to my comment, she just walked back to the office where
she was when I first entered. Because she was taking a while to give me the form
which I thought she was going to do, I walked over to the desk where she was to
ask for the form. She finished her telephone call and told me that I was free to
leave because she had called the main office and was told that since I had refused
to sign the form the doctor would not see me and I was free to go, so I left.

2

Because I felt threatened and also that my rights were disregarded since it has
already been determined that I have a permanent work-related injury as well as a
recent doctor’s narrative that this was not a process that I should be undergoing.”
In a follow-up letter, appellant disagreed with Dr. Smith’s assertion that she had become
belligerent with the staff.
“This statement is very inaccurate. I asked why I had to fill it out and I then was
told okay then just sign it and leave the questions blank. I did not think that this
was a good idea so I opted not to do this. I would also add that if I had indeed
become belligerent I really do not think that the receptionist would have come
back and stood as close as she did when she spoke to me, nor do I think that she
would have tried to help me by making a call to see if I could be seen. Evidently
this has not happened before or she would not have tried to resolve the situation
because a solution would have been in place.”
Appellant stated that she did not at any time refuse to attend a second opinion evaluation.
In a decision dated April 2, 2013, OWCP suspended appellant’s compensation effective
that date. It found that she did not cooperate. OWCP considered appellant’s statement and
found it an invalid reason for not cooperating. It advised that her benefits may be reinstated only
after verification that she attended and fully cooperated with the examination, with such
reinstatement effective the date of compliance.
In a decision dated July 31, 2013, an OWCP hearing representative performed a review
of the written record and affirmed the April 2, 2013 decision suspending appellant’s
compensation. The hearing representative found that OWCP properly suspended her
compensation on the grounds that she obstructed an OWCP-directed medical examination
without good cause. Appellant appeared for the examination but refused to complete the short
questionnaire Dr. Smith’s office required because she felt he should have already known the
answers. In evaluating the totality of the circumstances, the hearing representative found that the
reasons appellant proffered failed to demonstrate good cause for her refusal to cooperate.
Appellant appealed the “termination” of her claim. “On the day of the second opinion
evaluation, I was ill, had traveled a great distance in inclement weather. I was also apprehensive
about being given another EMG [electromyogram] test. Perhaps I was perceived as being
belligerent however that was not my intent.” She added that at no time did she ever refuse to
undergo a second opinion examination.
LEGAL PRECEDENT
An employee shall submit to examination by a medical officer of the United States, or by
a physician designated or approved by the Secretary of Labor, after the injury and as frequently
and at the times and places as may be reasonably required.2 If an employee refuses to submit to
or obstructs an examination, his or her right to compensation is suspended until the refusal or
obstruction stops. Compensation is not payable while a refusal or obstruction continues, and the
2

5 U.S.C. § 8123(a).

3

period of the refusal or obstruction is deducted from the period for which compensation is
payable to the employee.3
ANALYSIS
Dr. Smith, the second opinion orthopedic surgeon, advised OWCP that he terminated
appellant’s appointment because she failed to fill out or sign a short intake form. Appellant
confirmed that she refused. Her reason for refusing was that the physician should have already
known the answers to the questions. “I felt that the information requested on the form should
have been sent to the doctor to read before I saw him.”
The Board finds that appellant’s refusal to follow standard intake procedures constituted
obstruction of an OWCP-directed medical examination. Her disagreement with OWCP
procedures or the physician’s routine business practices, and her feeling that other procedures
should have been followed, do not constitute good cause for her failure to cooperate. The Board
will therefore affirm OWCP’s October 22, 2013 decision suspending her compensation pursuant
to 5 U.S.C. § 8123(d).
Appellant initially denied that she became belligerent with the physician’s staff. She
described the assertion as being very inaccurate. Nonetheless, appellant thought the referral was
“asinine.” In an apparent justification for her conduct, she explained that she was apprehensive
because others had told her such evaluations were never favorable. Appellant did not think the
Board-certified orthopedic surgeon would act in her best interest. She also explained that she
was ill with a virus, had traveled a great distance in inclement weather, and was also
apprehensive about being given another EMG. “Perhaps I was perceived as being belligerent,”
appellant concedes on appeal, but that was not her intent.
That appellant can understand why Dr. Smith’s staff perceived her as being belligerent
tends to support the description of her conduct, but it does not matter to the outcome of this case.
For the purpose of invoking the penalty under 5 U.S.C. § 8123(d), it is sufficient that she refused
to comply with standard intake procedures. Although appellant argues that at no time did she
ever refuse to undergo the examination, she did refuse a step that was necessary for the
successful completion of the examination.
The Board notes that OWCP did not terminate appellant’s compensation. OWCP
suspended any right to compensation pending her full cooperation and verified compliance.
Following her full cooperation and verified compliance with the scheduled examination, the
period of the obstruction, however long that may be, will be deducted from the period for which
any compensation is payable.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation pursuant to
5 U.S.C. § 8123(d) for obstructing an OWCP-directed medical examination.

3

Id. at § 8123(d).

4

ORDER
IT IS HEREBY ORDERED THAT the July 31, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SOUTHERN ARIZONA VA HEALTH CARE
SYSTEM, Tucson, AZ, Employer
__________________________________________
Appearances:
Kelley Craig, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-1603
Issued: June 16, 2021

Case Submitted on the Record

ORDER REMANDING CASE
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 8, 2020 appellant, through counsel, filed a timely appeal from an April 6,
2020 merit decision and from a purported April 21, 2020 merit decision of the Office of Workers’
Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No.
20-1603.
On August 17, 2016 appellant, then a 59-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging on that date she developed a headache, neck pain, and spasms when pushing
an overweight patient in a wheelchair and helping him to the restroom while in the performance
of duty. She stopped work on August 25, 2016 and returned to work on September 19, 2016. On
August 31, 2016 OWCP accepted appellant’s claim for cervical sprain.

1

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

Beginning October 24, 2016, appellant’s attending physicians, Drs. Ty Endean
and Thomas Martens, osteopaths, reported the additional condition of herniated cervical disc.
On September 26, 2019 OWCP referred appellant, a statement of accepted facts, and a list
of questions to Dr. Michael A. Steingart, an osteopath and sports medicine specialist, for a second
opinion examination regarding her accepted cervical condition.
On October 16, 2019 appellant, through counsel, requested that the acceptance of her claim
be expanded to include the additional condition of herniated cervical disc.
By decision dated April 6, 2020, OWCP denied appellant’s request to expand her claim to
include herniated cervical disc.
On April 7, 2020 appellant, through counsel, requested that the acceptance of appellant’s
claim be expanded to include the additional conditions of herniated cervical disc at C5-6 and
aggravation of her herniated disc at C4-5.
OWCP received Dr. Steingart’s November 6, 2019 second opinion report on
April 16, 2020. Dr. Steingart diagnosed chronic sprain/strain with central disc herniation at C5-6
with myofascial pain, finding that the conditions were causally related to the accepted employment
injury.
In an April 21, 2020 letter, OWCP provided appellant with Dr. Steingart’s November 6,
2019 second opinion report and concluded that, “We do not find this report sufficient to overturn
the [April 6, 2020] decision on our motion. If you disagree with the [April 6, 2020] decision report,
please review the appeal rights attached.”
The Board’s Rules of Procedure provide that the Board has jurisdiction to consider and
decide appeals from the final decision of OWCP in any case arising under FECA. In considering
whether a document constitutes a final decision, it is not the form, but the content and the intention
of OWCP that is determinative.2
The April 21, 2020 letter notes review of Dr. Steingart’s November 6, 2019 report by
OWCP. It attached a copy of his report, but did not make findings regarding his conclusions and
diagnoses.
The April 21, 2020 letter made an adverse finding with respect to appellant’s request for
expansion of her claim and there is no indication that the finding was interlocutory or otherwise
pending further development. Accordingly, the Board finds that the April 21, 2020 letter
constitutes a final decision on the merits of appellant’s claim for expansion of her accepted
conditions and is, therefore, an appealable decision pursuant to 20 C.F.R. §§ 501.2(c) and 502.3(a).

2

See Henry F. Dyer, Docket No. 05-452 (issued May 13, 2005) (the Board held that a July 22, 2004 letter with no
appeal rights attached constituted a final decision. The letter noted that the medical evidence established 32 percent
binaural hearing loss, but that appellant had previously received schedule awards for 53 percent binaural hearing loss
and “there is not an increased hearing impairment documented at this time).” Ralph Edmond Zollars, 5 ECAB 617,
618 (1953) and the cases cited therein.

2

Section 8124(a) of the Federal Employees’ Compensation Act (FECA) and section 10.126
of the implementing regulations3 require that final decisions of OWCP contain findings of fact and
a statement of reasons. A decision denying a claim should contain a correct description of the
basis for the denial in order that the parties of interest have a clear understanding of the precise
defect of the claim and the kind of evidence which would overcome it.4 The Board finds that
OWCP’s April 21, 2020 decision was incomplete as it did not contain findings regarding the
medical evidence from Dr. Steingart, nor did it provide a statement of reasons as to why it
determined that his report was not entitled to be accorded weight or probative value as it was based
on a proper factual background and a physical examination. Appellant was, therefore, not apprised
of the deficiencies OWCP had found in Dr. Steingart’s second opinion report. Because the
April 21, 2020 decision does not explain the basis for the denial of expansion of her claim to
include cervical herniated disc at C5-6 as diagnosed by him or the findings of fact reached therein,
the Board finds that OWCP has not fulfilled its responsibility under section 8124 of FECA and
section 10.126 of its implementing regulations in regard to her formal request for expansion of the
acceptance of her claim to include additional diagnosed conditions.
Accordingly, the case must be remanded to OWCP for a proper decision, which includes
findings of fact and a clear and precise statement regarding appellant’s request for expansion of
her accepted conditions. Following further development as OWCP deems necessary, it shall issue
a de novo decision.5

3

5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126, respectively.

4

K.K., Docket No. 19-0652 (issued September 19, 2019); L.R., Docket No. 15-0235 (issued December 21, 2015);
Patrick Michael Duffy, 43 ECAB 280 (1991).
5
Consequently, in view of the Board disposition of the April 21, 2020 decision, the Board will not address the
April 6, 2020 decision.

3

IT IS HEREBY ORDERED THAT the April 21, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further proceedings consistent with
this order of the Board.
Issued: June 16, 2021
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Aurora, CO, Employer
__________________________________________

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

Docket No. 20-0642
Issued: September 30, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On January 29, 2020 appellant, through counsel, filed a timely appeal from a December 26,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than six
percent permanent impairment of the left lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
OWCP accepted that on August 14, 2010 appellant, then a 60-year-old transportation
security officer (screener), sustained a temporary aggravation of a left ankle posterior tibial tendon
tear and a temporary aggravation of the left pes planus while in the performance of duty.3
OWCP thereafter received an April 10, 2018 medical report by Dr. Jack L. Rook, an
attending Board-certified physiatrist. Dr. Rook noted a history of the accepted August 14, 2010
employment injury and appellant’s medical treatment. On physical examination, he reported that
appellant ambulated with an antalgic gait into the examination room and otherwise noted that he
did not demonstrate any chronic pain behaviors. On general examination with appellant standing,
Dr. Rook noted that he had a collapse of his left longitudinal arch. There was muscle atrophy of
the left foot intrinsic musculature compared to the right side. On evaluation of the left foot,
Dr. Rook found tenderness of the plantar fascia adjacent to the left heel. There was no discomfort
elicited with compression of the metatarsal heads. There was also tenderness along the medial
foot extending to the medial ankle just below the medial malleolus. There was no swelling or
deformity of the ankle joint. On range of motion (ROM) examination of the left ankle, Dr. Rook
reported 10 degrees of dorsiflexion, 20 degrees of plantar flexion, 20 degrees of eversion, and 15
degrees of inversion measured three times. In view of the fact that the posterior tibial tendon tear
was a permanent condition and appellant’s foot and ankle problems had persisted for the past eight
years, he recommended that his diagnoses be expanded to include permanent aggravation of a left
ankle posterior tibial tendon tear and permanent aggravation of the left pes planus. Dr. Rook
referred to the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides)4 and utilized the diagnosis-based impairment (DBI)
rating method to find that, under Table 16-2 (Foot and Ankle Regional Grid), page 501, the class
of diagnosis (CDX) for a torn posterior tibial tendon resulted in a class 1 impairment with a default
value of five. Dr. Rook assigned a grade modifier for functional history (GMFH) of 2 based on
appellant’s chronic limp and need for a cane, modified footwear, and an Arizona brace. He
assigned a grade modifier for physical examination (GMPE) of 1. Dr. Rook found that a grade
modifier for clinical studies (GMCS) was not applicable as the clinical studies were used to
establish the diagnosis and proper placement in the regional grid. He utilized the net adjustment
formula (GMFH - CDX) + (GMPE - CDX) = (2 - 1) + (1 - 1) = +1, which resulted in a grade D or
3

Appellant had other claims accepted by OWCP. In a claim adjudicated by OWCP under File No. xxxxxx705,
OWCP accepted appellant’s April 24, 2010 traumatic injury claim for cervical sprain and temporary aggravation of
cervical spondylosis with myelopathy. In a claim for a September 30, 2011 traumatic injury adjudicated by OWCP
under File No. xxxxxx171, OWCP accepted neck sprain, cervical spondylosis without myelopathy, and various right
shoulder conditions including bursitis and sprain. Appellant’s claims in File Nos. xxxxxx705 and xxxxxx171 have
been administratively combined with the present claim, File No. xxxxxx461, with File No. xxxxxx705 designated as
the master file.
4

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

2

six percent permanent impairment of the left lower extremity. Dr. Rook also utilized the ROM
rating method and referenced Table 16-20 (Hindfoot Motion Impairments) and Table 16-22 (Ankle
Motion Impairments), page 549, to find two percent permanent impairment for inversion at 15
degrees, seven percent permanent impairment for plantar flexion at 20 degrees, and seven percent
permanent impairment at 10 degrees of dorsiflexion. He combined these values to equal 16 percent
permanent impairment of the left lower extremity. Dr. Rook concluded that appellant had 16
percent permanent impairment of the left lower extremity given that he had a higher rating for
permanent impairment under the ROM rating method.
On December 7, 2018 appellant filed a claim for a schedule award (Form CA-7).
On September 11, 2018 OWCP routed Dr. Rook’s April 10, 2018 report, a statement of
accepted facts (SOAF), and the case file to Dr. Arthur S. Harris, a Board-certified orthopedic
surgeon serving as a district medical adviser (DMA), for review and a determination of permanent
impairment of the left lower extremity in accordance with the sixth edition of the A.M.A., Guides
and the date of maximum medical improvement (MMI).
In a September 12, 2018 report, Dr. Harris reviewed the medical record, including the
report of Dr. Rook. He found that the diagnosis of left ankle posterior tibial tendon tear had been
established. Using the DBI method with reference to appellant’s left ankle condition, the DMA
found that, under the sixth edition of the A.M.A., Guides, Table 16-2, page 501, appellant had six
percent permanent impairment of the left lower extremity. He noted that Dr. Rook had calculated
appellant’s impairment using both the DBI and ROM rating methods. The DMA explained that
the A.M.A., Guides do not allow an impairment rating due to loss of ROM for the applicable
diagnosis because the diagnosis did not contain an asterisk (*) in the DBI grid, and thus the ROM
method was not applicable. He concluded that appellant reached MMI on April 10, 2018, the date
of Dr. Rook’s impairment evaluation.
By decision dated June 19, 2019, OWCP granted appellant a schedule award for six percent
permanent impairment of the left lower extremity. The period of the award ran for 17.28 weeks
for the period April 10 through August 8, 2018, and was based on the opinions of Dr. Rook and
the DMA.5
On July 3, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on October 10, 2019.
By decision dated December 26, 2019, OWCP’s hearing representative affirmed the
June 19, 2019 decision.

5
By separate decision on that same date OWCP expanded the acceptance of appellant’s claim to include a
permanent aggravation of a left ankle posterior tibial tendon tear and a permanent aggravation of left pes planus.

3

LEGAL PRECEDENT
The schedule award provisions of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.8 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).9 The Board has approved the use
by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.10
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning, Disability and Health
(ICF).11 In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the ankle, the relevant portion of the leg for the present case, reference
is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501.12 After the CDX
is determined from the Foot and Ankle Regional Grid (including identification of a default grade
value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13 Under Chapter 2.3,
evaluators are directed to provide reasons for their impairment rating choices, including choices
of diagnoses from regional grids and calculations of modifier scores.14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (March 2017).
10

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

11
A.M.A., Guides, page 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF):
A Contemporary Model of Disablement.
12

See A.M.A., Guides 501-08, Table 16-2.

13

Id. at 515-22.

14

Id. at 23-28.

4

accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than six
percent permanent impairment of the left lower extremity, for which he previously received a
schedule award.
Appellant submitted an April 10, 2018 report from Dr. Rook to support his claim for a
schedule award. Dr. Rook reviewed appellant’s history and conducted an examination. He
reported a diagnosis of left ankle posterior tibial tendon tear. Utilizing the DBI methodology under
Table 16-2, page 501 of the sixth edition of the A.M.A., Guides, Dr. Rook found that appellant
had a class 1, grade C impairment for left ankle posterior tibial tendon tear. He assigned a grade
modifiers and applied the net adjustment formula to find a net adjustment of +1, which yielded six
percent left lower extremity permanent impairment. Dr. Rook also opined that appellant had 16
percent permanent impairment of the left lower extremity under the ROM methodology.
OWCP properly referred the evidence of record to a DMA, Dr. Harris. In his
September 12, 2018 report, the DMA concurred with Dr. Rook’s finding that appellant had six
percent permanent impairment of the left lower extremity. However, the DMA disagreed with
Dr. Rook’s 16 percent left lower extremity impairment rating as it was based on the ROM
methodology. He correctly explained that the A.M.A., Guides do not allow an impairment rating
due to loss of ROM for the applicable diagnosis because the diagnosis did not contain an asterisk
(*) in the DBI grid, and thus the ROM method was not applicable.16
The Board finds that the DMA properly applied the A.M.A., Guides to find that appellant
had no more than six percent permanent impairment of the left lower extremity, for which he
previously received schedule award compensation. Dr. Harris’ report is detailed, well rationalized,
and based on a proper factual background, and thus his opinion represents the weight of the
medical evidence.17 As such, the Board finds that appellant has not met his burden of proof to
establish greater left lower extremity permanent impairment than what was previously awarded.
On appeal counsel contends that OWCP failed to give due deference to the findings of
appellant’s attending physician. The Board does not find that the assertion is meritorious. As
explained above, appellant has not established greater than six percent permanent impairment of
his left lower extremity.

15

See supra note 9 at Chapter 2.808.6(f) (March 2017). See also P.W., Docket No. 19-1493 (issued August 12,
2020); Frantz Ghassan, 57 ECAB 349 (2006).
16

See V.S., Docket No. 19-1679 (issued July 8, 2020); N.M., Docket No. 19-1925 (issued June 3, 2020); T.F.,
Docket No. 19-0157 (issued April 21, 2020).
17

See id.

5

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than six
percent permanent impairment of the left lower extremity, for which he previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East Meadow, NJ, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0361
Issued: August 15, 2018

Case Submitted on the Record

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

JURISDICTION
On December 11, 2017 appellant, through counsel, filed a timely appeal from an
October 18, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish cervical and right
shoulder conditions causally related to the accepted April 14, 2017 employment incident.
FACTUAL HISTORY
On April 14, 2017 appellant, then a 52-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that she developed pain between her neck and shoulder while lifting a tray
from a bottom shelf at work on that date.3 She stopped work on the date of the alleged injury.
In an April 26, 2017 medical report, Dr. Philip M. Rafiy, an attending Board-certified
orthopedic surgeon, related a history that appellant was status post work-related right shoulder and
neck injuries sustained on April 14, 2017. He noted that she tried to lift a large and heavy tray on
a lower shelf and felt pain between her right shoulder and neck, accompanied by numbness and
tingling sensations in her right anterior arm. Dr. Rafiy noted that appellant informed him that, at
the time of injury, she felt as though her right shoulder was falling off and she was unable to turn
her neck to the left. Appellant denied any prior injury to the right shoulder. She reported that her
right shoulder pain caused difficulties with lifting her arm above shoulder level or moving the
shoulder backwards. Dr. Rafiy noted a history of appellant’s medical treatment and additional
physical limitations. He provided findings on physical examination and reviewed the results of
right shoulder and cervical spine x-rays performed on his date of examination. Dr. Rafiy indicated
that appellant also received an injection of Lidocaine and Depo-Medrol into the right trapezius on
the date of his examination. He addressed her treatment plan which included additional diagnostic
testing and physical therapy. Dr. Rafiy related that disability forms had been completed.
Also, on April 26, 2017 Dr. Rafiy completed a duty status report (Form CA-17) in which
he reiterated a history that, on April 14, 2014, appellant lifted a heavy tray from a bottom shelf.
He described clinical findings and diagnosed right shoulder derangement and cervical discogenic
pain due to injury. Dr. Rafiy advised that appellant could not resume work and listed her work
restrictions.
Dr. Rafiy, in an April 26, 2017 right shoulder magnetic resonance imaging (MRI) scan
report, provided an impression of acromioclavicular (AC) joint hypertrophy, mild arthrosis of the
AC joint, small subacromial bursal effusion, a 2 x 2-centimeter subchondral proximal humeral
cyst, and trace glenohumeral joint effusion. He also provided an impression of increased signal
supraspinatus tendon consistent with supraspinatus tendinitis, thinning of the supraspinatus
tendon, and possible supraspinatus tendon tear best seen on coronal image number 13 and sagittal
image number 11.
In an April 26, 2017 cervical spine MRI scan report, Dr. Rafiy provided an impression of
C4-5 posterior bony ridge with superimposed left paracentral disc bulge resulting in moderate leftsided foraminal stenosis of the C5 nerve, C5-6 posterior disc osteophyte complex with bony ridge,
3

OWCP assigned the present claim OWCP File No. xxxxxx871. Appellant previously filed a claim under OWCP
File No. xxxxxx474 for an injury sustained on July 13, 2006. On October 23, 2006 OWCP accepted that claim for
right shoulder and right neck sprain.

2

and superimposed right paracentral disc bulge resulting in mild-to-moderate right-sided foraminal
stenosis, and straightening of the cervical spine with loss of cervical lordosis consistent with
muscle spasms.
In an April 28, 2017 New York State Workers’ Compensation Board form report, Dr. Rafiy
restated a history of appellant’s claimed right shoulder and neck injuries sustained on
April 14, 2017. He diagnosed cervical disc disorder with radiculopathy, unspecified cervical
region. Dr. Rafiy also diagnosed other specific joint derangements of the right shoulder. He
checked a box marked “yes” indicating that the incident described by appellant was the competent
medical cause of her injury/illness. Dr. Rafiy checked additional boxes marked “yes” indicating
that her complaints were consistent with her history of injury/illness and that her history of
injury/illness was consistent with his objective findings.
OWCP, by development letter dated May 26, 2017, noted that appellant’s claim initially
appeared to be a minor injury that resulted in minimal lost time from work. It had approved a
limited amount of medical expenses without considering the merits of her claim. OWCP reopened
appellant’s claim because she had not returned to work in a full-time capacity. It requested that
she provide additional medical evidence in support of her traumatic injury claim, including a
physician’s opinion supported by a medical explanation as to how the reported work incident
caused or aggravated the claimed injury. OWCP afforded appellant 30 days to submit the
necessary evidence.
In an additional New York State Workers’ Compensation Board form report dated May 17,
2017, Dr. Rafiy again noted April 14, 2017 as the date of injury and provided diagnoses of
cervicalgia and right shoulder pain.
In a May 24, 2017 Form CA-17 report, Dr. Rafiy restated the history of appellant’s claimed
April 14, 2017 right shoulder and cervical injuries. He described clinical findings, but did not
provide a medical diagnosis. Dr. Rafiy reiterated his prior opinion that appellant could not resume
work and provided her work restrictions.
Dr. Miguel Vargas, a physiatrist, noted in a June 8, 2017 attending physician’s report
(Form CA-20), that appellant developed right shoulder and neck pain with numbness and tingling
in the right arm on April 14, 2017. He examined her and diagnosed cervical discogenic pain with
muscle spasms, cervical stenosis, and right shoulder internal derangement. Dr. Vargas ruled out a
rotator cuff tear. He indicated by checking the box marked “yes” that appellant’s injury was caused
or aggravated by the described employment activity. Dr. Vargas related that she felt pain while
lifting a large and heavy tray at work. He advised that appellant was totally disabled indefinitely
commencing on the date of injury.
By decision dated June 28, 2017, OWCP denied appellant’s traumatic injury claim, finding
that the medical evidence of record did not contain a rationalized opinion explaining how her
diagnosed right shoulder and cervical conditions were causally related to the accepted April 14,
2017 employment incident.

3

OWCP subsequently received reports from appellant’s physical therapist who addressed
the treatment of appellant’s cervical and right shoulder conditions on intermittent dates from
June 13 through 29, 2017.
In additional New York State Workers’ Compensation form reports dated June 30 and
July 5 through 26, 2017, Dr. Rafiy referred appellant to physical therapy to treat her diagnoses of
cervical radiculopathy and right shoulder internal derangement.
In an April 14, 2017 progress note and a June 27, 2017 New York State Workers’
Compensation Board form report, Dr. Jason D. Idelson, an internist, related the history of
appellant’s alleged April 14, 2017 right neck/shoulder injury. He discussed findings on physical
examination and assessed a work-related shoulder sprain due to lifting at work on April 14, 2017.
By appeal request form received on July 18, 2017 by OWCP, appellant requested
reconsideration of the June 28, 2017 decision. In an accompanying letter dated July 14, 2017, she
contended that, on April 14, 2017, she sustained work-related right shoulder and cervical injuries
for which she was currently receiving physical therapy.
Appellant submitted Form CA-17 reports dated May 24 and July 3, 2017 from a physician
whose signature is illegible. The reports provided a history of the April 14, 2017 employment
incident, described clinical findings, and listed appellant’s work restrictions. The report did not
provide a medical diagnosis due to injury.
Dr. Rafiy again reiterated in a May 24, 2017 Form CA-17 report the history of appellant’s
claimed April 14, 2017 right shoulder and cervical injuries, clinical findings, and opinion that she
could not resume work. He did not provide a medical diagnosis due to injury.
Additional reports from appellant’s physical therapist addressed the treatment of
appellant’s right shoulder and cervical spine conditions on July 5 and 20, 2017.
By letter dated September 27, 2017, counsel submitted a report of the same date from
Dr. Rafiy. In his report, Dr. Rafiy again related a history of appellant’s claimed April 14, 2017
right shoulder and cervical spine injuries. He also noted her medical history which included the
2006 work-related right shoulder and cervical spine injuries. Dr. Rafiy reviewed the April 26,
2017 right shoulder and cervical spine x-ray and MRI scan diagnostic test results and reported
findings on physical examination. He provided an impression of right shoulder rotator cuff
supraspinatus tendon tear and cervical disc osteophyte complex with foraminal stenosis and nerve
impingement. Dr. Rafiy opined that appellant sustained injuries to the cervical spine and right
shoulder as a direct result of the work-related April l4, 2017 accident. He maintained that she
sustained post-traumatic cervical radiculopathy secondary to the posterior cervical disc osteophyte
complex with paracentral disc bulge resulting in cervical foraminal stenosis and nerve root
impingement. Dr. Rafiy listed appellant’s right shoulder and cervical spine physical restrictions
and provided a treatment plan. He concluded that her injuries were permanent in nature and that
she was totally disabled and unable to return to her usual letter carrier work duties. Dr. Rafiy again
noted appellant’s prior 2006 work-related cervical spine and right shoulder injuries and maintained
that she was in her usual state of health with no complaints of neck pain or right shoulder pain
prior to the April 14, 20|7 employment incident.

4

By decision dated October 18, 2017, OWCP denied modification of its June 28, 2017
decision, finding that the medical evidence submitted by appellant did not contain a rationalized
medical opinion on causal relationship between her right shoulder and cervical spine conditions
and the accepted April 14, 2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence5 including that he or she sustained an injury in the performance of duty, and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.7 There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.8
The second component of fact of injury is whether the employment incident caused a
personal injury and generally can be established only by medical evidence.9 The evidence required
to establish causal relationship is rationalized medical opinion evidence, based upon complete
factual and medical background, showing a causal relationship between the claimed condition and
the identified incidents.10 The belief of the claimant that a condition was caused or aggravated by
the employment is insufficient to establish a causal relationship.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish cervical or right
shoulder conditions caused or aggravated by the accepted April 14, 2017 employment incident.
Appellant submitted a series of reports from her attending physician, Dr. Rafiy. In his most
comprehensive report dated September 27, 2017, Dr. Rafiy related appellant’s examination
4

Supra note 2.

5

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

6

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

7

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

8

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

9

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
10

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

11

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

5

findings, reviewed diagnostic test results, and diagnosed right shoulder rotator cuff supraspinatus
tendon tear and cervical disc osteophyte complex with foraminal stenosis and nerve impingement.
He opined that the diagnosed conditions and her resultant total disability from her usual letter
carrier work duties directly resulted from the accepted April 14, 2017 employment incident, noting
that, while she sustained accepted work-related right shoulder and cervical conditions in 2006, she
was in her usual state of health with no complaints of neck pain or right shoulder pain prior to the
April 14, 2017 employment incident. The Board, however, has held that an opinion that a
condition is causally related because the employee was asymptomatic before the injury is
insufficient, without adequate rationale, to establish causal relationship.12 Dr. Rafiy failed to
provide sufficient medical rationale explaining how appellant’s current right shoulder and cervical
conditions and disability status were caused or aggravated by the April 14, 2017 work incident.13
The Board finds therefore that his report is insufficient to meet her burden of proof.
Similarly, Dr. Rafiy’s April 26, 2017 Form CA-17 report is insufficient to establish
appellant’s burden of proof. While it contains an affirmative opinion that her diagnosed right
shoulder derangement and cervical discogenic pain and resultant disability from work were related
to the April 14, 2017 employment incident, the report does not contain any medical rationale
explaining how the lifting incident at work on that date actually caused or aggravated the diagnosed
conditions and resultant disability.14
In his New York State Workers’ Compensation Board form report dated April 28, 2017,
Dr. Rafiy diagnosed cervical disorder with radiculopathy and right shoulder derangement.
Although he checked a box marked “yes” on the form report when asked if the April 14, 2017
work incident caused the diagnosed conditions, the Board has held that a report that addresses
causal relationship with a checkmark, without medical rationale explaining how the work
condition caused the alleged injury, is of diminished probative value and is insufficient to establish
causal relationship.15 Dr. Rafiy failed to explain how physiologically appellant’s diagnosed
cervical and right shoulder conditions were caused or aggravated by lifting a tray from a shelf at
work on April 14, 2017. Without explaining how, physiologically, the movements involved in the
employment incident caused or contributed to the diagnosed condition, his opinion regarding
causal relationship is equivocal in nature and of limited probative value.16 Because Dr. Rafiy
failed to provide a well-rationalized explanation regarding the causal relationship between
appellant’s diagnosed conditions and the accepted employment incident, his report is of limited
probative value.

12

T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

13
See T.C., Docket No. 15-1534 (issued March 1, 2016) (medical reports without adequate rationale are of
diminished probative value and do not meet an employee’s burden of proof.
14

Id.

15

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

16
See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).

6

Dr. Rafiy’s remaining reports are insufficient to meet appellant’s burden of proof. Within
these additional reports, he did not provide an opinion concluding that the accepted April 14, 2017
employment incident caused or aggravated her diagnosed right shoulder and cervical conditions,
disability status, medical treatment, and work restrictions.17
Dr. Vargas, in a June 8, 2017 Form CA-20 report, diagnosed cervical discogenic pain with
muscle spasms, cervical stenosis, and right shoulder internal derangement. He advised that
appellant was totally disabled indefinitely commencing April 14, 2017. While Dr. Varga checked
a box marked “yes,” that the diagnosed condition was caused or aggravated by the April 14, 2017
employment incident, he failed to offer medical rationale explaining how her diagnosed cervical
and right shoulder conditions and disability status were caused or aggravated by lifting a tray from
a shelf at work on that day.18 Thus, the Board finds that his report is insufficient to establish
appellant’s burden of proof.
In his April 14, 2017 progress note and June 27, 2017 New York State Workers’
Compensation Board form report, Dr. Idelson diagnosed right shoulder sprain due to the April 14,
2017 employment incident. However, he provided no medical rationale explaining how the
accepted work incident caused or aggravated appellant’s diagnosed condition.19
The May 24 and July 3, 2017 Form CA-17 reports which contained a physician’s illegible
signature are of no probative value as the author cannot be identified as a physician.20 This
evidence is insufficient to establish appellant’s claim.
The reports from appellant’s physical therapist are likewise insufficient to establish
appellant’s claim as reports by a physical therapist are of no probative value because a physical
therapist is not considered a physician under FECA.21
The Board finds that appellant has failed to submit rationalized, probative medical evidence
sufficient to establish neck and right shoulder conditions causally related to her employment on
April 14, 2017. Appellant therefore did not meet her burden of proof.
On appeal, counsel contends that appellant sustained a work-related condition and
disability based on the medical evidence of record. He notes that she did not engage in any other
17

See T.M., Docket No. 16-1456 (issued January 10, 2017); S.E., Docket No. 08-2214 (issued May 6, 2009); A.D.,
58 ECAB 149 (2006) (medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship).
18

Supra note 15.

19

Supra note 13.

20

See L.D., Docket No. 17-1808 (issued December 28, 2017); Merton J. Sills, 39 ECAB 572, 575 (1988).

21

5 U.S.C. 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law; J.G., Docket No. 15-0251 (issued April 13, 2015); A.C., Docket No. 08-1453 (issued November 18,
2008) (records from a physical therapist do not constitute competent medical opinion in support of causal relation, as
physical therapists are not considered physicians as defined under FECA).

7

activities which could have caused, aggravated, accelerated, or precipitated her claimed workrelated condition and resultant disability. Counsel further contends that OWCP’s failure to
conclude that appellant has a work-related disability violates its procedures as well as applicable
and well-established case law, statute, and regulations. Based on the findings and reasoning set
forth above, the Board finds that his arguments are not substantiated. The Board finds that OWCP
properly evaluated the evidence of record in its obligation to properly adjudicate appellant’s claim.
As appellant has not submitted sufficiently rationalized medical evidence to support her allegation
that she sustained neck and right shoulder conditions causally related to the April 14, 2017
employment incident, she has failed to meet her burden of proof to establish a claim for
compensation.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish cervical and
right shoulder conditions causally related to the accepted April 14, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 15, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Highwood, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0802
Issued: December 3, 2020

Case Submitted on the Record

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

On February 28, 2020 appellant filed a timely appeal from a February 4, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 20-0802.
On November 1, 2019 appellant, then a 50-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed arthritis of the knees and bone spurs due
to factors of her federal employment, including a lot of walking, which required range of motion
within her knees. She noted that she first became aware of her condition on February 1, 2017 and
realized its relation to her federal employment on October 29, 2019. Appellant did not
immediately stop work.
The record reflects that appellant filed a claim for a June 25, 2019 traumatic injury to the
right knee under OWCP File No. xxxxxx656. Appellant claimed that she miss-stepped off of a
curve while working. OWCP has not issued a decision in this claim.1 In a memorandum of
telephone conference (Form CA-110) dated January 21, 2020, it reportedly did not address
appellant’s request for right knee surgery because she had a pending occupational disease claim
under the claim number currently before the Board, OWCP File No. xxxxxx258.

1

This claim is not in the record before the Board.

Under the present claim, OWCP File No. xxxxxx258, by decision dated February 4, 2020,
OWCP denied appellant’s occupational disease claim finding that the evidence of record was
insufficient to establish the implicated employment factors. It noted that appellant had not
responded to the November 14, 2019 development letter and it was unable to determine how
walking as a city carrier contributed to her right knee osteoarthritis over a given period of time.
OWCP concluded, therefore, that the requirements had not been met to establish an injury as
defined by the Federal Employees’ Compensation Act.
The Board, having duly considered the matter, finds that the case is not in posture for
decision.
As appellant has pursued compensation benefits under File Nos. xxxxxx258 and
xxxxxx656 for the right knee, there are medical reports and factual information that bear directly
on the matter before OWCP in File No. xxxxxx656.2 The record currently before the Board does
not contain all of the relevant medical and factual evidence upon which the Board could adjudicate
appellant’s present claim.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication depends on cross-referencing between files and when two or more injuries occur to
the same part of the body.3 For example, if a new injury case is reported for an employee who
previously filed an injury claim for a similar condition or the same part of the body, doubling is
required.4 As the claims in the following OWCP files all involve appellant’s right knee, OWCP
File Nos. xxxxxx258 and xxxxxx656, the Board finds that they must be administratively combined
for a full and fair adjudication of appellant’s present claim. This will allow OWCP to consider all
relevant claim files and accompanying evidence in developing appellant’s current occupational
disease claim.
Accordingly, the Board will remand the case to OWCP to administratively combine the
case records for OWCP File Nos. xxxxxx258 and xxxxxx656. Following this and other such
development as deemed necessary, OWCP shall issue a de novo merit decision.

2

Supra note 1.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4
R.R., Docket No. 19-0368 (issued November 26, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, File
Maintenance & Management, Chapter 2.400.8c (February 2000).

2

IT IS HEREBY ORDERED THAT the February 4, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 3, 2020
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 21-0526
Issued: September 3, 2021

Case Submitted on the Record

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

JURISDICTION
On February 19, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated December 20, 2019, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned his request for
an oral hearing.
FACTUAL HISTORY
On August 23, 2019 appellant, then a 58-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on August 20, 2019 he injured his feet, ankle, knees, and back when he
fell through a drain cover on his route while in the performance of duty. He did not stop work.
Appellant sought treatment at an urgent care facility on August 20, 2019 and was treated
by Dr. Britanne J. Doss, a family practitioner, who noted a history of injury that on that date he

stepped on a drain and fell with low back and right foot pain. Dr. Doss diagnosed strain of muscle,
fascia and, tendon of the lower back, initial industrial accident on August 20, 2019. She also
diagnosed unspecified sprain of the right foot, initial encounter. Dr. Doss advised that appellant
could work with restrictions as of the date of her examination and she anticipated his release to
full-duty work on August 30, 2019. In an August 28, 209 report, she reiterated appellant’s history
of injury and lower back and right foot diagnoses, and provided an opinion regarding his work
capacity.
In an August 28, 2019 report, Dr. Billie R. Downing, a family practitioner, noted a history
of injury that on August 20, 2019 appellant stepped on a drain and fell experiencing low back and
right foot pain. She examined him and diagnosed lower back injury/sprain. Dr. Downing advised
that appellant could continue performing light-duty work.
A September 24, 2019 duty status report (Form CA-17) by a provider with an illegible
signature indicated that on August 20, 2019 appellant fell in a drain hole and injured his feet, ankle,
knees, hand, and back. The report provided a diagnosis of muscle spasm and paresthesia due to
injury. The report also diagnosed ankle pain. Additionally, the report indicated that appellant was
unable to perform his regular work.
On November 4, 2019 appellant filed a claim for compensation (Form CA-7) for disability ,
during the period October 7 through November 1, 2019, for leave without pay.
OWCP, in a November 8, 2019 development letter, informed appellant that, when his claim
was first received, it appeared to be a minor injury that resulted in minimal or no lost time from
work and; therefore, payment of a limited amount of medical expenses was administrative ly
approved without formal consideration of the merits of his claim. It explained, however, that it
had reopened the claim for formal consideration of the merits because it received a claim for wageloss compensation. OWCP advised appellant of the deficiencies of his claim, requested additional
factual and medical evidence, and provided a questionnaire for his completion. It afforded him 30
days to respond. No additional evidence was received.
By decision dated December 20, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the factual component of fact of injury had not been established. It noted that he had
not responded to its November 8, 2019 development letter requesting specific factual information
regarding the claimed injury. OWCP concluded, therefore, that the requirements had not been met
to establish an injury as defined by FECA.
On January 16, 2020 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review.
In an April 6, 2020 letter, OWCP’s hearing representative informed appellant that an oral
hearing would take place on May 13, 2020 at 1:00 p.m., Eastern Standard Time (EST). The
hearing representative provided a toll-free number and a passcode to access the hearing by
telephone. The hearing representative requested that appellant dial the toll-free number “a few
minutes” before the commencement of the scheduled hearing. The letter was mailed to appellant’s
last known address of record.

2

By decision dated February 11, 2021, OWCP found that appellant had abandoned his
request for an oral hearing. It indicated that he had received a 30-day advance notice of the hearing
scheduled for May 13, 2020 and that he had failed to appear for the oral hearing. OWCP further
noted that there was no indication in the record that appellant had contacted OWCP either prior to
or subsequent to the scheduled hearing to explain his failure to appear.
LEGAL PRECEDENT
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for which
a hearing is sought.1 Unless otherwise directed in writing by the claimant, OWCP’s hearing
representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date. 2 OWCP has the burden of proving that
it properly mailed to a claimant and any representative of record a notice of a scheduled hearing.3
A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference. 4
The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing.5
ANALYSIS
The Board finds that OWCP properly determined that appellant abandoned his request for
an oral hearing.
Following OWCP’s December 20, 2019 decision, appellant filed a timely request for an
oral hearing before a representative of OWCP’s Branch of Hearings and Review. In an April 6,
2020 letter, a hearing representative notified him that a telephonic hearing to be held on May 13,
2020 at 1:00 p.m., EST. had been scheduled. The hearing notice was properly addressed to
appellant’s last known address of record.6 Appellant did not call-in as instructed for the May 13,
1

20 C.F.R. § 10.616(a).

2

Id. at § 10.617(b).

3

A.R., Docket No. 19-1691 (issued February 24, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019);
Michelle R. Littlejohn, 42 ECAB 463(1991).
4

Supra note 1 at § 10.622(f).

5

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011); see also E.M., Docket No. 20-0837 (issued January 27, 2021); A.J., Docket No. 18-0830
(issued January 10, 2019).
6
Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. This is called the mailbox rule. See C.Y., Docket No. 18-0263 (issued
September 14, 2018). Appellant did not submit evidence of nondelivery of OWCP’s April 6, 2020 hearing notice
such that the presumption of receipt would be rebutted.

3

2020 telephonic hearing and there is no indication that he requested postponement of the
telephonic hearing. Moreover, he did not submit a written request within the 10 days after the date
set for the telephonic hearing and request that another telephonic hearing be scheduled. 7
Accordingly, the Board finds that OWCP’s hearing representative properly found that appellant
abandoned his telephonic hearing request. 8
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned his request for
an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 3, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7

A.C., Docket No. 20-1510 (issued April 23, 2021); E.S., Docket No. 19-0567 (issued August 5, 2019).

8

Id.; A.J., supra note 5.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Raleigh, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0639
Issued: July 26, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On January 22, 2019 appellant filed a timely appeal from a July 27, 2018 decision of the
Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
assigned Docket No. 19-0639.
On January 27, 2014 appellant, then a 56-year-old letter carrier, filed an occupational
disease claim (Form CA-2) for an emotional condition (severe depression, anxiety, and posttraumatic stress disorder) which allegedly arose in the performance of duty on or about
February 7, 2011.
After further development of the case record, OWCP denied the claim by decision dated
March 24, 2014. It found that appellant had not established fact of injury. By decision dated
January 29, 2015, a representative of OWCP’s Branch of Hearings and Review found that
appellant established fact of injury, but failed to establish a compensable employment factor.
Pursuant to the Board’s Rules of Procedure, an appeal is considered filed when “received” by the Clerk of the
Appellate Boards. 20 C.F.R. § 501.3(f). However, when the date of receipt would result in a loss of appeal rights,
the appeal will be considered to have been filed as of the date of the U.S. Postal Service postmark or other carriers’
date markings. Id. at § 501.3(f)(1). The 180th day following OWCP’s July 27, 2018 decision was January 23, 2019.
The current appeal was postmarked January 22, 2019, and the Clerk of the Appellate Boards received it on
January 28, 2019. Accordingly, the appeal is timely based on the January 22, 2019 postmark. Id.
1

Therefore, she affirmed the prior denial as modified. By merit decisions dated April 29, 2016 and
July 21, 2017, OWCP denied modification of its prior decision.
On July 23, 2018 appellant requested reconsideration of OWCP’s July 21, 2017 merit
decision. By decision dated July 27, 2018, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to demonstrate clear evidence of error.
The Board has considered the matter and finds that appellant’s July 23, 2018 request for
reconsideration was timely filed. Section 10.607(a) of the implementing regulations provides that
an application for reconsideration must be received by OWCP within one year of the date of the
decision for which review is sought.2 The one-year period begins on the day after the date of the
original contested decision. When determining the one-year period for requesting reconsideration,
the last day of the period should be included unless it is a Saturday, a Sunday, or a legal holiday.3
In this case, one year from OWCP’s July 21, 2017 merit decision was July 21, 2018. Because the
last day of the filing period fell on a Saturday, the period extends to the next business day, which
was Monday, July 23, 2018.4 OWCP received appellant’s request for reconsideration on
July 23, 2018. Therefore, the request is considered timely and subject to the standard for reviewing
timely requests for reconsideration pursuant to 20 C.F.R. § 10.606(b)(3).5 As OWCP applied the
incorrect standard in its July 27, 2018 decision, that decision must be set aside.6 The Board
therefore remands the case for review of appellant’s July 23, 2018 reconsideration request under
the proper standard for a timely reconsideration request, followed by an appropriate decision.

2

20 C.F.R. § 10.607(a).

3

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

4

Id.; see also C.J., Docket No. 18-0994 (issued February 22, 2019).

5

A timely application for reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that OWCP erroneously applied or interpreted a specific point of law; (ii) advances a
relevant legal argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence
not previously considered by OWCP. 20 C.F.R. § 10.606(b)(3). When a timely application for reconsideration does
not meet at least one of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review of the merits. 20 C.F.R. § 10.608(a), (b).
6
The clear evidence of error standard utilized by OWCP in its July 27, 2018 decision is appropriate only for
untimely reconsideration requests. See 20 C.F.R. § 10.607(b).

2

IT IS HEREBY ORDERED THAT the July 27, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.
Issued: July 26, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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