United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, TERRY POST
OFFICE, Terry, MS, Employer
__________________________________________

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

Docket No. 09-630
Issued: October 13, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 5, 2009 appellant filed a timely appeal from a November 14, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs. Because over one year has elapsed
between the most recent merit decision and the filing of this appeal, the Board lacks jurisdiction
to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for
reconsideration of the merits under 5 U.S.C. § 8128.
FACTUAL HISTORY
On May 16, 2006 appellant, then a 45-year-old postmaster, filed an occupational disease
claim alleging that he sustained an emotional condition as a result of stress from his employment.
He claimed that due to the increasing demands, expectations and workload involved with
managing a midsize office, he could not function. Stress began building in April 2004, and
resulted in a breakdown on April 26, 2006. The employing establishment controverted the
claim.

By decision dated July 12, 2006, the Office denied appellant’s claim on the grounds that
his allegations of stress due to being overworked were not supported by the record.1
On November 3, 2006 appellant, through his representative, filed a request for
reconsideration.
By decision dated January 24, 2007, the Office found that appellant did not establish that
he sustained an occupational disease in the performance of duty. It stated that appellant’s
descriptions of his work factors were vague and that he did not provide credible evidence, such
as witness statements or other compelling evidence establishing that he was harassed or
overworked during his employment. The Office concluded that appellant did not establish any
compensable employment factors such that review of the medical evidence was not warranted.
On May 14, 2007 appellant filed a request for reconsideration. In a May 9, 2007 letter,
he stated that the stress level of his job changed significantly in 2004 when he returned from a
detail and had to deal with additional issues including Office disorganization, upset employees,
Equal Employment Opportunity (EEO) complaints and customer complaints. Appellant’s office
was 16.2 percent over his clerk budget. Due to the growth of his city and the short clerk budget,
he did not have adequate time to perform his duties. Appellant dealt with unrealistic budgets and
management advising him that he would be removed, if he did not keep within budget. He
became fearful of being removed from his job due to his inability to perform duties. Appellant
was in the office working daily to conserve clerk hours, including on holidays. Due to the
pressure from his supervisor, he was required to push his employees, creating an unpleasant
office environment. Appellant felt harassed, intimidated and undervalued for the actual
productive work he was accomplishing. He submitted a series of weekly flash reports dated
from week 19 in 2004 through week 26 in 2007, to show that he was shorthanded and had to
work over his normal duties. Appellant submitted statements from his wife and mother-in-law.
A statement from Diane Brown, a coworker, described his working conditions and a list of
postmasters obtained from the employing establishment’s website.
On August 24, 2007 the Office referred appellant to Dr. Elizabeth C. Henderson, a
Board-certified psychiatrist, for a second opinion evaluation regarding whether his employment
contributed to his emotional condition. It provided a statement of accepted facts listing incidents
it found occurred in the performance of duty, incidents that occurred that were not factors of
employment and incidents which the Office found did not occur. The incidents that the Office
found occurred in the performance of duty included that two clerks transferred out of the
employing establishment in 2005 and appellant did the work himself instead of using substitute
rural carriers. During 2005, some employees were out of work under the Family and Medical
Leave Act (FMLA). Appellant was required to handle grievances and customer complaints as
part of his normal duties and, from 2005 to 2006, managed at least two EEO complaints. One of
his employees used the grievance process to influence management of the office, and he chose to
perform extra duties instead of confronting the employee. Prior to appellant’s return from detail,
1

Appellant appealed the July 12, 2006 decision to the Board and his appeal was docketed under No. 06-1741. In
an October 4, 2006 letter, he requested that his appeal be dismissed so that he could submit additional evidence and
pursue reconsideration before the Office. The Board issued an order dismissing the appeal on November 1, 2006.

2

the clerk budget was over by 16.2 percent and he held a multifaceted job requiring interaction
with customers, employees and supervisors. In August 1999, a disagreement over the feasibility
of the budget arose between him and his supervisor.
The incidents which the Office found were not factors of employment included that
appellant worked extra hours at his own discretion, that he requested additional budget hours,
that he had perceptions and self-generated reactions to his employment situation, that he rarely
spoke with his supervisor, that he was denied a request for a downgraded position, that a former
employee died in 2006 and that there was a verbal exchange between him and an employee on
April 26, 2006. The incidents that the Office found not to have occurred included that Hurricane
Katrina caused extra work at appellant’s employing establishment, that the growth at the
employing establishment and the customer base caused an increase in his workload, that he was
in danger of not making his budget for which he would be fired, that the employing
establishment was disorganized when he returned from his detail in 2004, that the budget
assigned was unrealistic and he was held accountable for any budget overages which occurred
while out on detail, that he had a tense relationship with his supervisor, that he was required or
asked to work on holidays, that there were increased demands and expectations after he returned
from his detail, that he received threats and intimidation letters, that employees were discouraged
from using sick leave, that there was tension among the employees and an unpleasant work
environment, that a supervisor told him he was not a team player and that he would take him out
of the office if he could not commit to work within the clerk budget, that a supervisor denied his
request to attend computer training classes, that customers and employees were upset and hostile
when he returned from detail, that the employing establishment was understaffed from 2004 to
2006, that customers petitioned to have mail delivered on both sides of the street and that there
were auditors inspecting the office twice a week.
In a September 25, 2007 medical report, Dr. Henderson opined that appellant did not
sustain a work-related emotional condition. She noted that appellant was diagnosed in
April 2006, with adjustment disorder with mixed disturbance of emotions and conduct.
However, a review of appellant’s complaints and the statement of accepted facts did not support
that the job factors led to direct causation, precipitation, aggravation or acceleration of this
condition. Dr. Henderson noted that his adjustment disorder had resolved by October 2006 with
no residuals. In response to an Office request, she clarified, in an October 16, 2007 medical
report, that appellant did not sustain a work-related injury.
By decision dated October 23, 2007, the Office denied appellant’s claim on the grounds
that the medical evidence did not establish that the accepted employment factors caused or
contributed to his diagnosed condition. It found that the weight of the medical evidence rested
with Dr. Henderson, who found that appellant did not sustain a work-related emotional
condition.2

2

By letter dated September 9, 2008, appellant requested a copy of Dr. Henderson’s second opinion medical
report. On request by the Office, an Office medical adviser opined that the report should not be released to
appellant. It denied appellant’s request on December 3, 2008 and notified him of his right to appeal to the Solicitor
of Labor. Pursuant to 20 C.F.R. § 501.2, the Board only has jurisdiction over final decisions arising out of the
Federal Employees’ Compensation Act. As this denial arises out of the Privacy Act, the Board does not have
jurisdiction over this matter.

3

On October 21, 2008 appellant filed a request for reconsideration.3 In an October 20,
2008 statement, he questioned the background of Dr. Henderson regarding his employment
duties and stated that she misdiagnosed him after only talking with him for one hour. He also
contended that the Office should have accepted that understaffing was a compensable factor.
Appellant submitted documents previously of record. He noted that the postmaster replacing
him only stayed 100 days before he was removed from the employing establishment. Appellant
denied the employing establishment’s contention that his emotional condition was due to other
financial and medical problems. He highlighted the statements from his wife and mother-in-law.
Appellant further submitted a list of postmasters obtained from an employing establishment’s
website.
By decision dated November 14, 2008, the Office denied further merit review on the
grounds that the arguments and factual evidence were cumulative and repetitive. The financial
documents, weekly flash report and list of postmasters from the employing establishment’s
website were irrelevant to the issue of whether appellant established causal relationship.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,4
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.5 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.7
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record8 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.9 While a reopening of a case may be predicated solely on a legal premise not

3

The Board notes that the request was received on October 24, 2008. However, since the postmark on the
request envelope was stamped October 21, 2008, the Office treated the request as timely. See 20 C.F.R. § 10.607(a).
4

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Eugene F. Butler, 36 ECAB 393,
398 (1984).
9

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007); Edward Matthew Diekemper, 31 ECAB
224, 225 (1979).

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previously considered such reopening is not required where the legal contention does not have a
reasonable color of validity.10
ANALYSIS
The Office accepted that some of appellant’s claimed work factors occurred in the
performance of duty but denied his claim finding that the medical evidence did not establish that
he sustained an emotional condition as a result of these factors. It also denied certain of the
claimed factors alleged, including that appellant was understaffed. The most recent merit
decision on appellant’s claim was October 23, 2007. He requested reconsideration on
October 21, 2008. The issue is whether the Office properly denied appellant’s request for
reconsideration without a merit review.
In support of his reconsideration request, appellant submitted an October 20, 2008
statement. He contended that Dr. Henderson did not have sufficient knowledge of his
employment duties and had she misdiagnosed him after only speaking with him for an hour.
However, appellant did not submit any evidence to support his allegations or to show that
Dr. Henderson’s report or that the statement of accepted facts provided to the doctor were biased
or deficient. The Board finds this argument lacks reasonable color of validity.11 Appellant noted
that the replacement postmaster stayed less than 100 days prior to being removed. However, this
contention is not relevant to the issue on which his claim was denied by the Office, the
deficiency of supporting medical evidence.12
Appellant denied the employing establishment’s contention that his emotional condition
was related to marital and financial problems. He submitted documentation of a home loan and
his Thrift Savings Plan. The Board finds that this argument and evidence was also insufficient to
require the Office to reopen the case. This material is not relevant to the issue of whether
employment factors caused or contributed to appellant’s emotional condition. The Office did not
base any of its decisions on his financial or marital status as it is not dispositive on the issue of
whether his work was a causal factor in his emotional condition. This evidence is not relevant to
the underlying issue and not sufficient to require further merit review.13
Appellant disagreed with the Office’s failure to accept being understaffed as a
compensable employment factor. He highlighted previously submitted letters and resubmitted a
weekly flash report for week 26 in 2007. Appellant reiterated his contention that the
understaffing of his office was a primary reason for his emotional condition and resubmitted
evidence already considered by the Office. He did not submit any relevant or pertinent new
evidence to establish that he was understaffed. The Office previously considered this evidence.
Evidence that is repetitious or duplicative of that already in the case record does not constitute a
10

M.E., 58 ECAB ___ (Docket No. 07-1189, issued September 20, 2007); John F. Critz, 44 ECAB 788,
794 (1993).
11

See Elaine M. Borhini, 57 ECAB 549 (2006); Charles A. Jackson, 53 ECAB 671 (2002).

12

Evidence that does not address the particular issued involved constitutes no basis for reopening a case.
D’Wayne Avila, 57 ECAB 642 (2006).
13

Id.

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basis for reopening a claim for further merit review.14 Appellant resubmitted a list of
postmasters from the employing establishment’s website. This evidence is repetitive of evidence
already contained in the record.15
The Board finds that appellant did not show that the Office erroneously applied or
interpreted a specific point of law, nor did he advance a relevant and previously unconsidered
legal argument or submit relevant and pertinent new evidence.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for
reconsideration of the merits under 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the November 14, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 13, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

14

See Brent A. Barnes, 56 ECAB 336 (2005).

15

Evidence which repeats or duplicates evidence already in the record has no evidentiary value and constitutes no
basis for reopening a case. Eugene F. Butler, supra note 8.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 14-4
Issued: March 13, 2014

Case Submitted on the Record

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

JURISDICTION
On October 3, 2013 appellant filed a timely appeal from an August 1, 2013 merit
decision and a September 6, 2013 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
developed a right shoulder injury causally related to factors of her federal employment; and
(2) whether OWCP properly denied appellant’s request for reconsideration under 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 3, 2013 appellant, then a 41-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging injury to the right shoulder in the performance
of duty. Her condition resulted from hand casing mail. Appellant noted a prior left shoulder
surgery due to a work-related traumatic injury. She first became aware of her condition in
September 2012 and first realized its relationship to her employment on March 8, 2013.
Appellant did not file a notice with the employing establishment within 30 days after the date she
first realized the relationship of her condition to her employment because the pain had been
intermittent.
In a report dated March 28, 2013, Dr. Henry Tong, Board-certified in physical medicine
and rehabilitation, noted that appellant had right shoulder pain and referred her to a specialist.
He reviewed her clinical history, including a work-related injury on December 28, 2006 to her
left arm and neck, for which she had physical therapy. Appellant underwent surgery for her left
shoulder on July 21, 2010. Dr. Tong stated that appellant was currently hand casing mail at
work, which required her to turn her neck side to side, causing pain. Appellant worked from four
to eight hours per day with restrictions. On physical examination, Dr. Tong noted positive
Neer’s and Hawkins’ signs on the right upper trapezius and scapular region. He diagnosed C3-5
disc bulges and spondylosis without stenosis; left C3 radiculopathy; a left partial thickness
supraspinatus and infraspinatus tear; an anterior glenoid labral tear; and an acromioclavicular
(AC) inferior spur; myofascial pain in the left upper/middle trapezius muscle, secondary to her
neck and shoulder problems; and a left forearm tingling due to a left ulnar mononeuropathy at
the elbow.
By letter dated April 17, 2013, OWCP requested additional factual and medical evidence.
It requested an opinion from her physician addressing causal relationship. OWCP afforded
appellant 30 days to submit additional evidence and noted that a physician’s assistant was not a
physician as defined under FECA. It also requested information regarding her duties and
precautions against injury from the employing establishment.
Appellant submitted a report from a certified physician’s assistant dated April 24, 2013.
She also submitted an April 24, 2013 report from Dr. Daya Vora, a Board-certified radiologist.
Dr. Vora obtained an x-ray and diagnosed mild reactive sclerosis of the greater tuberosity and a
tiny spur formation at the tip of the acromion process.
On April 24, 2013, Dr. Robert B. Kohen, a Board-certified orthopedist, diagnosed
appellant with right shoulder impingement. He recommended physical therapy for her condition
three times a week for four to six weeks.
In a statement dated May 1, 2013, appellant attributed her right shoulder condition to
filing paperwork and hand casing mail. While hand casing, her neck and both shoulders would
start burning, and she would stop and stretch for a short period. Appellant’s symptoms degraded
over time, such that her right shoulder felt weak and her fingers became numb and tingled. She
noted hobbies of recumbent bicycling and ballroom dancing. Appellant stated that repetitive
motions made her condition worse, and that she had never had any previous right shoulder, hand,
arm or wrist injuries.

2

In a report dated June 6, 2013, Dr. Tong restated the findings in his March 28, 2013
report. He noted that on April 24, 2013 appellant was diagnosed with right shoulder
impingement and that Dr. Kohen recommended physical therapy. Dr. Tong noted that, on
May 14, 2013, she underwent radiofrequency ablation, which helped her neck pain.
By decision dated August 1, 2013, OWCP denied appellant’s claim. It found that she had
not submitted sufficient evidence to establish that her right shoulder condition was caused or
aggravated by factors of her employment.
By letter dated August 19, 2013, appellant requested reconsideration of the August 1,
2013 decision. She submitted an August 30, 2013 note explaining that she was currently seeing
a new physician.
By decision dated September 6, 2013, OWCP denied appellant’s request for
reconsideration. It found that she had not submitted new and relevant evidence or raised any
substantive legal questions about the prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is based on a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.4 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
2

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Michael E. Smith, 50 ECAB 313, 315 (1999).

4

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

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the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether
there is a causal relationship between the claimant’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 claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.8
ANALYSIS -- ISSUE 1
Appellant filed a claim alleging a right shoulder condition due to factors of her federal
employment. OWCP denied her claim, finding that she did not submit sufficient medical
evidence to establish causal relation. The Board finds that appellant did not submit sufficient
medical evidence to establish that she sustained a right shoulder condition due to factors of her
federal employment.
Dr. Tong’s March 28, 2013 report reviewed appellant’s medical history and addressed a
previous work-related injury to the left shoulder. He did not provide a diagnosis for her right
shoulder condition other than “pain.” The Board notes that pain is generally a description of a
symptom and not considered a firm medical diagnosis.9 Moreover, Dr. Tong did not address
causal relationship. Therefore, this report is insufficient to establish appellant’s claim.
On April 24, 2013 Dr. Vora diagnosed a mild reactive sclerosis of the greater tuberosity
and a tiny spur formation at the tip of the acromion process. On the same date, Dr. Kohen
diagnosed appellant with right shoulder impingement on an outpatient form. Dr. Tong referred
to Dr. Kohen’s diagnosis in a June 6, 2013 report, which was similar to his March 28, 2013
report. The Board finds that none of the physicians of record adequately addressed the issue of
causal relationship. The report of Dr. Vora provided no opinion as to how the right shoulder
findings related to appellant’s work. Dr. Kohen’s diagnosis of right shoulder impingement
provided no reference to any employment factors. The Board has held that medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
5

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

6

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

7

Leslie C. Moore, 52 ECAB 132, 134 (2000).

8

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

9

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 10, 2008).

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value on the issue of causal relationship.10 Lacking thorough medical rationale on the issue of
causal relationship, the reports of Drs. Vora and Kohen are of diminished probative value and are
not sufficient to establish that appellant sustained an employment-related right shoulder
condition in the performance of duty.
As noted, Dr. Tong’s reports addressed appellant’s prior left shoulder conditions, not the
claimed condition. Appellant must submit medical evidence with a rationalized opinion on the
causal relationship between a diagnosed condition and the identified employment factors. To be
rationalized, the opinion of a physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.11 Dr. Tong generally noted that
moving appellant’s neck side to side caused pain. He did not provide an opinion of reasonable
medical certainty regarding the cause of appellant’s diagnosed right shoulder condition. The
Board has held that the fact that a condition manifests itself or worsens during a period of
employment12 or that work activities produce symptoms revelatory of an underlying condition
does not raise an inference of causal relationship between a claimed condition and employment
factors.13 Therefore, Dr. Tong’s report does not establish appellant’s claim for a work-related
right shoulder injury.
Appellant also submitted a report from a physician’s assistant dated April 24, 2013. A
physician’s assistant is not a “physician” as defined under FECA. This report is not probative
medical evidence supportive of a claim for federal workers’ compensation, unless countersigned
by a physician.14 As the report was not countersigned, it does not constitute probative medical
evidence.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.15 Causal relationship must be established by
rationalized medical opinion evidence and appellant did not submit such evidence.

10

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Ellen L.
Noble, 55 ECAB 530, 534 (2004).
11

Leslie C. Moore, supra note 7.

12

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

13

B.B., Docket No. 13-256 (issued August 13, 2013); Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

14

See 5 U.S.C. § 8101(2); Lyle E. Dayberry, 49 ECAB 369, 372 (1998) (regarding physicians’ assistants);
Vickey C. Randall, 51 ECAB 357, 360 n.4 (2000) (regarding physical therapists).
15

See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., 59 ECAB 158, 162 (2007); Robert Broome, 55
ECAB 339, 341 (2004).

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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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.16 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.17
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.18 The Board also has held that the submission of evidence
which does not address the particular issue involved does not constitute a basis for reopening a
case.19 While the reopening of a case may be predicated solely on a legal premise not previously
considered, such reopening is not required where the legal contention does not have a reasonable
color of validity.20
ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim for compensation by decision dated August 1, 2013. On
August 19, 2013 she requested reconsideration and submitted a note dated August 30, 2013
explaining that she was currently seeing a new physician.
The Board finds that appellant did not establish that OWCP erroneously applied or
interpreted a specific point of law, or advance a relevant legal argument not previously
considered. Furthermore, she did not submit relevant and pertinent new evidence not previously
considered by OWCP with her request. The only evidence submitted in support of her request of
reconsideration was the August 30, 2013 note regarding a change in physician. This evidence is
not relevant to appellant’s occupational disease claim, as the underlying issue is whether her
right shoulder condition was causally related to duties of her employment. This is a medical
issue that must be addressed by a physician.21 Appellant’s note regarding a change in physician
16

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007).

17

Id. at § 10.608(b); K.H., 59 ECAB 495, 499 (2008).

18

See Daniel Deparini, 44 ECAB 657, 659 (1993).

19

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).
20

Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000).

21

See Bobbie F. Cowart, 55 ECAB 746, 749 (2004).

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is not relevant to the issue of causal relationship. Accordingly, it is not relevant or pertinent to
the underlying issue in her case and it is not sufficient to require OWCP to reopen her claim for
consideration of the merits.22
Because appellant did not meet any of the necessary requirements for reconsideration of
her case by OWCP, she is not entitled to further merit review. The Board finds, therefore, that
OWCP properly refused to reopen her case for further consideration of the merits of her claim
under 5 U.S.C. § 8128.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her right
shoulder condition was causally related to factors of her federal employment. The Board also
finds that OWCP properly denied her request for reconsideration under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 6 and August 1, 2013 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: March 13, 2014
Washington, DC

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

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

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

22

See James W. Scott, 55 ECAB 606, 609 (2004).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Oklahoma City, OK,
Employer
__________________________________________

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

Docket No. 19-1045
Issued: July 24, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On April 12, 2019 appellant filed a timely appeal from December 4, 2018 and April 4,
2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP).1 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.
ISSUE
The issue is whether OWCP has met its burden of proof to rescind its acceptance of the
claim.

1
The Board notes that following the April 4, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 15, 2018 appellant, then a 48-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on September 14, 2018 she injured her back when she slipped in
water on the floor and braced herself to avoid falling while in the performance of duty. A witness
indicated that appellant reported to her that she almost fell as she came in the door. Appellant
initially sought medical attention on September 15, 2018.
In an October 1, 2018 development letter, OWCP requested that appellant submit
additional evidence in support of her claim. It advised her of the type of factual and medical
evidence needed and afforded her 30 days to respond.
In a letter dated October 15, 2018, the employing establishment challenged appellant’s
claim based on video footage of the September 14, 2018 incident. It asserted that at 11:08 a.m.
appellant reentered the building, noticed something on the floor, looked down, stepped around it,
and continued walking normally. The employing establishment asserted that there was no fall,
slip, or brace as she had alleged. It noted that a copy of the video and investigative interview were
both available upon request.3
On September 26, 2018 Dr. John W. Ellis, a Board-certified family practitioner, described
the September 14, 2018 incident, noting that appellant saw the floor was wet, tensed up and tried
not to slip, but felt something pull in her low back. He diagnosed lumbar spine strain, lumbar
radiculopathy, right knee sprain, and right knee internal derangement.
By decision dated November 7, 2018, OWCP accepted appellant’s claim for lumbar sprain.
It further found that the factual history of the claim did not support the additional medical
diagnoses of lumbar radiculopathy, right knee sprain, and right knee internal derangement.
On September 15, 2018 appellant sought treatment in the emergency room. Dr. Elizabeth
Magann, an osteopath, reported that on September 14, 2018 appellant was bracing for a fall and
twisted her back. Appellant denied any other trauma. Dr. Magann diagnosed acute low back pain
without sciatica.
In a November 19, 2018 report, Dr. Ellis described appellant’s history of injury on
September 14, 2018 and described her initial symptoms of low back pain. He also noted that on
March 25, 2016 appellant had undergone left knee arthroplasty. Dr. Ellis reported that due to the
severe pain in her back, appellant was “favoring her total knee” and began having significant pain
in her right knee. He found that appellant’s right knee was buckling and giving way. Dr. Ellis
opined that appellant’s accepted condition of lumbar sprain should be expanded to include lumbar
radiculopathy, right knee internal derangement, and right knee sprain. He opined that these
additional conditions were causally related to the September 14, 2018 employment injury.
Dr. Ellis explained that when appellant noticed she was in a wet area, she immediately tensed up,
which caused abnormal biomechanical forces through her lumbar spine putting pressure on the
discs. The increased inflammation in her lumbar spine caused irritation of the spinal nerve roots
where they exit the spinal canal causing radicular symptoms into her lower extremity. He further
3

The employing establishment did not submit the investigative report or video at that time.

2

found that when appellant tensed her body to avoid falling, this put abnormal biomechanical forces
through her right knee causing shearing of the meniscus. Dr. Ellis concluded that appellant
required medical treatment due to these additional conditions.
By decision dated December 4, 2018, OWCP found that the November 7, 2018 acceptance
had been issued in error. It explained that it had “inadvertently issued an acceptance letter” on
November 7, 2018. OWCP then noted that appellant, a federal employee, had filed a timely claim,
that the incident had occurred, and that a medical condition had been diagnosed in connection with
the injury or event. However, it denied appellant’s September 14, 2018 traumatic injury claim
finding that she was not in the performance of duty at the time the injury occurred. OWCP relied
upon the employing establishment’s challenge statement, which included an interpretation of its
review of the video footage.
On December 7, 2018 OWCP indicated that it had received a compact disc (CD).
On November 28, 2018 appellant underwent a magnetic resonance imaging (MRI) scan of
her lumbar spine which demonstrated a disc protrusion at L5-S1 which was retro-displacing the
proximal right S1 nerve root.
In a December 19, 2018 e-mail response to a senatorial inquiry, OWCP noted that it had
initially accepted appellant’s claim on November 7, 2018. It reported that the employing
establishment had provided a video in the form of a CD and that after reviewing the images, OWCP
found that appellant had not sustained an injury on the job, as alleged. OWCP further reported
that it rescinded the November 7, 2018 decision by decision dated December 4, 2018.4
In a December 17, 2018 report, Dr. Ellis again described the September 14, 2018
employment incident. He noted that appellant spotted something wet on the floor, immediately
tensed up and tried to walk slower while looking down, and immediately felt something pull in her
low back. Dr. Ellis noted that appellant completed her work shift on September 14, 2018, noticed
increased symptoms at work on September 15, 2018, and sought medical treatment on that date.
Dr. Joseph B. Cox, a neurosurgeon, diagnosed L5-S1 disc herniation in a December 18,
2018 report, based on appellant’s November 28, 2018 MRI scan, with associated back pain and
right leg pain. He reported on September 14, 2018 that appellant experienced a work-related injury
when she felt a pop in her low back. On January 21, 2019 he found that appellant’s L5-S1 disc
herniation did not correspond to her radicular symptoms.
On February 5, 2019 appellant requested reconsideration of the December 4, 2018 OWCP
decision. She asserted that the employment incident occurred at her place of employment, inside
the premises, and during her work hours. Appellant reported that she felt a pop and pull in her
lower back from tensing her body to avoid falling on September 14, 2018. She did not realize that
she had experienced a traumatic injury until she returned to her work duties. On September 15,
4

On January 4, 2019 appellant requested an oral hearing from an OWCP hearing representative. By decision dated
January 15, 2019, OWCP’s Branch of Hearings and Review denied her request for an oral hearing as untimely as it
was postmarked more than 30 days after the December 4, 2019 OWCP decision and could be addressed through the
submission of new evidence in the reconsideration process.

3

2018 she could not perform her work duties due to pain in her lower back and right leg. Appellant
left work on September 15, 2018 to seek medical treatment.
On February 25, 2019 OWCP indicated that it had received a blank CD on
December 7, 2018.
In a March 6, 2019 report, Dr. Ellis described appellant’s September 14, 2018 employment
incident and noted that she returned to her work duties of pushing steel wire cages weighing
between 500 and 1,000 pounds. He reported that as she worked, appellant’s back pain increased.
On September 15, 2018 appellant returned to work and had trouble bending and lifting as well as
pushing the steel wire cages. Appellant’s right knee pain also increased with buckling and giving
way. Dr. Ellis again requested that the acceptance of appellant’s claim be expanded to include
lumbar radiculopathy, right knee internal derangement, and right knee sprain.
In a letter dated March 27, 2019, the employing establishment asserted that it had mailed a
digital video disc (DVD) on March 25, 2019. It repeated its prior allegations that, based on its
review of the DVD, appellant had not slipped or braced herself, but saw something on the floor,
stepped over it, and continued on her way. The employing establishment alleged that she
continued to work her full eight-hour shift from September 14 through October 24, 2018. It
provided a report of an investigative interview dated September 25, 2018 during which appellant
explained that on Friday, September 14, 2018, as she entered the building, she saw what she
believed was water on the floor, slid and caught herself from falling, but continued to work.
Appellant further noted that if she had not hurt herself avoiding a slip, then she injured her back
on the workroom floor on September 14 and 15, 2018. However, she noted that her back had
already begun hurting before her work shift on September 15, 2018.
On April 1, 2019 OWCP noted that it had received a DVD/CD containing surveillance
video footage. However, it further noted that the evidence “could not be scanned,” but was a part
of the file. This evidence, however, was not of record.
By decision dated April 4, 2019, OWCP modified the December 4, 2018 decision to a
denial based on the factual evidence rather than performance of duty. It noted that the case was
initially accepted on November 7, 2018 for a lumbar sprain. OWCP noted that, after further
review, it was determined that the case was accepted in error due to a lack of full investigation
surrounding the true facts of the injury and the performance of duty aspect of the case. It further
indicated that it had reviewed the video surveillance footage on April 4, 2019 and that this footage
established that the September 14, 2018 incident had not occurred as alleged.
LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.5 The Board
has upheld OWCP’s authority under this section to reopen a claim at any time on its own motion
and, where supported by the evidence, set aside or modify a prior decision and issue a new

5

5 U.S.C. § 8128.

4

decision.6 The Board has noted, however, that the power to annul an award is not arbitrary and
that an award for compensation can only be set aside in the manner provided by the compensation
statute.7
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory provision,
where there is good cause for so doing, such as mistake or fraud. Once OWCP accepts a claim, it
has the burden of proof to justify termination or modification of compensation benefits. This also
holds true where OWCP later decides that it erroneously accepted a claim.8
OWCP bears the burden of proof to justify rescission of acceptance on the basis of new
evidence, legal argument and/or rationale.9 Probative and substantial positive evidence or
sufficient legal argument must establish that the original determination was erroneous. OWCP
must also provide a clear explanation of the rationale for rescission.10
ANALYSIS
The Board finds that OWCP has not met its burden of proof to rescind acceptance of
appellant’s claim.
The Board finds that the December 4, 2018 decision rescinding acceptance of the claim
failed to provide a clear explanation or its rationale. Rather, this decision provided only a
conclusory finding that appellant was not in the performance of duty at the time of the alleged
employment injury. OWCP did not explain how or why she was not in the performance of duty
on September 14, 2018 when the record establishes that she was on the employing establishment
premises and performing employing duties at the time of the incident. The issue in the April 4,
2018 decision should have been whether OWCP had properly met its burden of proof to rescind
acceptance of the claim.11
As OWCP attempted to rescind the acceptance of appellant’s claim for a traumatic injury,
it must follow its established procedures for rescission.12 Its procedures require a proposed and
final decision rescinding the original finding.13 These procedures further provide that a rescission
6

M.H., Docket No. 19-0941 (issued April 29, 2020); W.H., Docket No. 17-1390 (issued April 23, 2018); 20 C.F.R.
§ 10.610.
7

M.H., id.; D.W., Docket No. 17-1535 (issued February 12, 2018).

8

M.H., id.; V.R., Docket No. 18-1179 (issued June 11, 2019).

9

M.H., id.; L.G., Docket No. 17-0124 (issued May 1, 2018).

10

M.H., id.; W.H., supra note 6.

11

T.H., Docket No. 15-1372 (issued September 20, 2016).

12

L.M., Docket No. 16-1464 (issued November 1, 2017).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.19(b) (February 2013).

5

decision should contain a brief background of the claim, discuss the evidence on which the original
decision was based, and explain why OWCP finds that the decision should be rescinded.
In its December 4, 2018 and April 4, 2019 decisions, OWCP did not follow the specific
procedures for a rescission decision as it failed to provide a proposed decision rescinding the
original finding, and failed to inform appellant of an accurate basis of its rescission decision.14
Furthermore, it failed to provide a clear explanation or its rationale for rescission. OWCP failed
to thoroughly discuss the evidence used to rescind the claim so that it is clear to the reader how
the case was incorrectly adjudicated, and why the original decision is now being invalidated.15 It
has not complied with its own procedures and thus, has not met its burden of proof to rescind
acceptance of appellant’s claim for a traumatic injury.16
As the Board has determined that OWCP has not met its burden of proof to rescind
acceptance of the claim, the Board will reverse the December 4, 2018 and April 4, 2019 decisions.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to rescind acceptance of
appellant’s claim.

14

S.R., Docket No. 12-1404 (issued December 11, 2012).

15

T.H., supra note 11.

16

See S.R., Docket No. 09-2332 (issued August 16, 2010) (once OWCP accepts a claim, it has the burden of
justifying the termination or modification of compensation benefits; this holds true where OWCP later decides that it
erroneously accepted a claim). T.H., supra note 11; Ixtala Ccihuatl, 49 ECAB 427 (1998); supra note 13 at Chapter
2.1400.19.c. (February 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the April 4, 2019 and December 4, 2018 decisions
of the Office of Workers’ Compensation Programs are reversed.
Issued: July 24, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-443
Issued: September 8, 2009

Case Submitted on the Record

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

JURISDICTION
On December 2, 2008 appellant filed a timely appeal from February 5 and August 8,
2008 decisions of the Office of Workers’ Compensation Programs, adjudicating her claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the appeal.
ISSUE
The issue is whether appellant has more than a two percent impairment of her right hand.

FACTUAL HISTORY
This is the third appeal in this case.1 By decision dated November 6, 2007, the Board set
aside a November 6, 2006 Office decision and remanded the case for further development of the
medical evidence. By decision dated September 14, 2005, the Board set aside a February 9,
2005 Office decision and remanded the case for further development of the medical evidence.
The facts and the law of the case contained in the Board’s prior decisions are incorporated herein
by reference.
On December 5, 2007 the Office referred appellant, together with a statement of accepted
facts, a list of questions and copies of medical evidence, to Dr. Steven J. Valentino, a Boardcertified osteopathic physician specializing in orthopedic surgery, for an impairment rating of her
right hand.
In a January 9, 2008 report, Dr. Valentino reviewed appellant’s medical history and
provided findings on physical examination. He stated that she had a history of trigger fingers on
the right involving the third, fourth and fifth fingers (middle, ring and little fingers) which were
surgically released.2 Dr. Valentino diagnosed resolved right trigger fingers. Appellant’s
subjective complaints included right palmar discomfort with repetitive use of her hand, such as
when pumping a manual blood pressure cuff. The discomfort lasted a few minutes and
dissipated when she rubbed her palm. Appellant stated that she had no triggering or locking of
her fingers. On physical examination, she had full range of motion of both upper extremities.
There were barely perceptible scars related to appellant’s right trigger finger releases that were
not hypertrophic. Her skin was normal. Range of motion of the metacarpophalangeal (MP or
MCP) joints of the index through little fingers was 0 to 90 degrees. Proximal interphalangeal
(PIP) joint range of motion was 0 to 100 degrees. Distal interphalangeal (DIP) range of motion
was 0 to 45 degrees.3 Thumb IP joint range of motion was 0 to 80 degrees. Thumb MP range of
motion was 0 to 60 degrees.4 There was no evidence of ankylosis, triggering or tenosynovitis of
the fingers. Allen’s, Wright’s, Roos’, Phalen’s, Tinel’s, ulnar stretch and grind tests were
negative. Neurologic examination revealed intact deep tendon reflexes. Motor and sensory
examinations were normal. There were no pathologic reflexes. There was no evidence of
weakness. Circumferential measurements of the arms and forearms were symmetric.
Dr. Valentino stated that appellant had reached maximum medical improvement which typically
would have occurred three to six months after surgery. She had no diminished strength, atrophy,
1

See Docket No. 05-1388 (issued September 14, 2005); Docket No. 07-1492 (issued November 6, 2007). On
August 22, 1988 appellant, then a 56-year-old nursing assistant, sustained trigger finger of her right ring finger when
she lifted a bag of laundry. She underwent a trigger finger release of the right ring finger on December 13, 1988.
The Office subsequently accepted trigger finger of her right little finger with a surgical release on October 3, 1989.
2

The Office has not accepted a middle finger injury in this case.

3

Distal interphalangeal or DIP, refers to the fingers. Interphalangeal, or IP, refers to the thumb. See the
American Medical Association, Guides to the Evaluation of Permanent Impairment (the A.M.A., Guides), fifth
edition 454, section 16.4d, and 461, section 16.4e (the thumb has three units: the interphalangeal (IP) joint, MP joint
and carpometacarpal (CMC) joint; the fingers have three units: DIP, PIP and MP.
4

The Office has not accepted a thumb condition in this case.

2

ankylosis or sensory changes. There were no subjective complaints causing impairment.
Dr. Valentino stated that, because appellant had successful trigger finger releases with restoration
of full function and normal clinical findings as to her hand and fingers, her impairment was zero
percent.
On February 3, 2008 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and an
Office medical adviser, reviewed Dr. Valentino’s January 9, 2008 report. He noted that
appellant previously received a schedule award for two percent right hand impairment based on
Table 16-29 at page 507 (Digit Impairment Due to Constrictive Tenosynovitis) of the fifth
edition of the A.M.A., Guides.5 Dr. Berman noted that Dr. Valentino made no objective or
subjective findings to establish persistent constrictive tenosynovitis.
By decision dated February 5, 2008, the Office denied appellant’s claim for an additional
schedule award. It found that the January 9, 2008 report from Dr. Valentino did not establish
greater than two percent impairment of her right hand, for which she received a schedule award.
On February 11, 2008 appellant requested an oral hearing that was held on June 24, 2008.
By decision dated August 8, 2008, an Office hearing representative affirmed the February 5,
2008 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 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, the Act 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. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.8
ANALYSIS
Dr. Valentino reviewed appellant’s medical history and provided findings on physical
examination. He diagnosed resolved right trigger fingers. There was no evidence of ankylosis,
triggering or tenosynovitis of the fingers. Allen’s, Wright’s, Roos’, Phalen’s, Tinel’s, ulnar
stretch and grind tests were negative. Neurologic examination revealed intact deep tendon
reflexes. Motor and sensory examinations were normal. There were no pathologic reflexes.
There was no evidence of weakness. Appellant had no diminished strength, atrophy, ankylosis
or sensory changes. Circumferential measurements of the arms and forearms were symmetric.
5

A.M.A., Guides (5th ed. 2001).

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Supra note 5.

3

Dr. Valentino stated that, because appellant had successful trigger finger releases with restoration
of full function and normal clinical findings as to her hand and fingers, her impairment was zero
percent. He provided range of motion measurements of the index through little fingers,
including 0 to 90 degrees of the MP joints. PIP joint range of motion was 0 to 100 degrees. DIP
range of motion was 0 to 45 degrees. Although Dr. Valentino stated that physical examination
revealed normal clinical findings of appellant’s hand and fingers, the A.M.A., Guides provides
for range of motion impairment based on his measurements. Figure 16-25 at page 464 provides
five percent impairment for zero degrees of extension of the MP joint. Figure 16-21 at page 461
provides 15 percent impairment for 40 degrees of flexion of the DIP joint and 10 percent for 50
degrees of flexion. Dr. Valentino measured 45 degrees of flexion of the DIP joint which falls
between 10 and 15 percent impairment. However, range of motion impairment cannot be
combined with impairment for constrictive tenosynovitis (trigger finger) according to the
instructions in section 16.7(c) at page 506 of the A.M.A., Guides.9 Dr. Berman noted that
appellant previously received a schedule award for two percent right hand impairment based on
Table 16-29 at page 507 (Digit Impairment Due to Constrictive Tenosynovitis) of the fifth
edition of the A.M.A., Guides.10 The Board finds that Dr. Valentino’s impairment rating is
based on a complete and accurate factual and medical background and a thorough physical
examination. Dr. Valentino found no evidence of finger triggering and diagnosed resolved right
trigger fingers. He found no weakness, sensory deficit, motor deficit or any other type of
impairment related to appellant’s accepted trigger finger of the ring and little fingers.
Dr. Valentino’s report establishes that she has no more than two percent right hand impairment
for which she received a schedule award.
On appeal, appellant argues that Dr. Valentino did not mention her 1988 trigger finger
release in the medical history. However, Dr. Valentino did reference the 1988 trigger finger
release in one part of his report in which he discussed medical history. Appellant argues that
Dr. Valentino did not provide range of motion measurements of the shoulders, elbows, wrists or
hands. The Office has not accepted an elbow or shoulder injury. Additionally, as noted,
impairment due to loss of range of motion cannot be combined with impairment due to
constrictive tenosynovitis. Appellant argues that Dr. Valentino did not reference the A.M.A.,
Guides. However, the Office’s procedure manual provides that, after all necessary medical
evidence is obtained, the file should be routed to an Office medical adviser for an opinion
concerning the nature and percentage of impairment in accordance with the A.M.A., Guides,
with the medical adviser providing rationale for the percentage of impairment specified.11 The
Office medical adviser applies the findings of the examining physician to the applicable portions
of the A.M.A., Guides. Appellant argues that there is a conflict in medical opinion between
Dr. David Weiss, an orthopedist, who provided impairment ratings on June 7, 2001 and
January 3, 2005, and Dr. Valentino. The Board addressed the reports of Dr. Weiss in its
9

Section 16.7c (Musculotendinous Impairments) at page 506 of the A.M.A., Guides provides that impairment due
to constrictive tenosynovitis, measured by use of Table 16-29 at page 507 and Table 16-18 at page 499, may be
combined with other impairments of the digit but not with decreased range of motion.
10

Supra note 5.

11

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

4

September 14, 2005 decision and found that they were insufficient to establish appellant’s right
hand impairment because they were not based on correct application of the A.M.A., Guides.
Therefore, the argument that there is a conflict in the medical evidence between Dr. Weiss and
Dr. Valentino is without merit.
CONCLUSION
The Board finds that appellant has no more than two percent impairment of her right
hand for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 8 and February 5, 2008 are affirmed.
Issued: September 8, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, St. Louis, MO, Employer
__________________________________________

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

Docket No. 07-710
Issued: July 10, 2007

Case Submitted on the Record

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

JURISDICTION
On January 23, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated September 15, 2006 which denied appellant’s
reconsideration request on the grounds that it was untimely filed and failed to establish clear
evidence of error. Because more than one year has elapsed between the last merit decision dated
August 24, 2004 and the filing of this appeal on February 27, 2007, the Board lacks jurisdiction
to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
This is the third appeal before the Board. Appellant, a 51-year-old dental hygienist, filed
a Form CA-2 claim for bilateral carpal tunnel syndrome on August 7, 2000. The Office accepted

the claim for right carpal tunnel syndrome and authorized surgery for right carpal tunnel release,
which appellant underwent on August 21, 2000. On October 4, 2001 the Office informed
appellant that a position as information clerk was available within her physical restrictions.
Appellant refused to accept the position and did not submit medical evidence from her treating
physician stating that the job was not suitable. By decision dated January 29, 2002, the Office
terminated appellant’s compensation benefits on the grounds that she refused to accept suitable
work. In a November 21, 2002 decision, the Board affirmed the January 29, 2002 Office
decision.1 Appellant requested reconsideration and submitted an October 27, 2003 report from
Dr. Syed Ali, a neurologist, who stated that she had carpal tunnel syndrome and tennis elbow
which would be aggravated by chronic repetitive movements of the hands and wrists. Dr. Ali
opined that appellant was not able to perform any kind of work involving repetitive use of her
hands, wrists, elbows and arms. He attributed appellant’s symptoms to her intermittent computer
use and keyboarding for four to eight hours between August 2000 and July 2002. By decision
dated January 9, 2004, the Office denied modification of the January 29, 2002 termination
decision. In an August 13, 2004 decision, the Board affirmed the January 9, 2004 Office
decision.2 The complete facts of this case are set forth in the Board’s November 21, 2002 and
August 13, 2004 decisions and are herein incorporated by reference.
On July 19, 2005 appellant requested reconsideration. In a May 13, 2005 report, Dr. Ali
stated:
“[Appellant] could not perform the offered light[-]duty position as information
clerk, which was offered on August 24, 2001.... The medical reason for that is
that the information clerk will have to use the hands in a repetitive manner and
considering the fact that she did have carpal tunnel syndrome that will preclude
her working in that position.”3
By decision dated October 11, 2005, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
By letter received September 11, 2006, appellant requested reconsideration. She alleged
in her request for reconsideration that her benefits had not been properly terminated because she

1

Docket No. 02-1832 (issued November 21, 2002).

2

Docket No. 04-905 (issued August 13, 2004). The Board noted that Dr. Ali’s opinion was of diminished
probative value regarding the issue presented because he did not provide a complete and accurate history or a
reasoned medical opinion with respect to appellant’s ability to perform the offered position as of January 29, 2002.
In addition, Dr. Ali erroneously stated that appellant worked intermittently at keyboarding from August 2000, which
is contrary to the record. Appellant stopped working on February 17, 2000 and was offered a position as an
information clerk. Dr. Ali did not demonstrate his familiarity with the offered position or its physical requirements.
3

In a letter dated September 13, 2005, the Office informed appellant that her application for reconsideration
under 5 U.S.C. § 8128 warranted a merit review. However, in light of the Office’s October 11, 2005 nonmerit
decision, it appears that this letter was sent by mistake.

2

still had residuals of her accepted condition, carpel tunnel. Appellant submitted a February 18,
2004 report from Dr. Ali who stated:
“This 53-year-old African-American woman is followed up for chronic disabling
pain at multiple sites. Her diagnosis has been cervical radiculopathy, lumbar
radiculopathy, and carpal tunnel syndrome and ulnar neuropathy. The patient has
been suffering from this the past several years. It is apparent that [appellant’s]
disability started on February 17, 2000. She was recommended to do the
light[-]duty work, however it is also apparent that in August 2001, she could not
do light[-]duty work because of the continued amount of symptoms of the carpal
tunnel syndrome, pain and paresthesias in the arms and neck.... Her pertinent
physical findings of the decreased range motion of the neck and back, collapsing
extremities with dysesthesias in the hands and arms and the diagnosis remains
chronic pain syndrome related to carpal tunnel syndrome, ulnar neuropathy,
cervical radiculopathy and lumbar radiculopathy. [Appellant] was clearly in my
opinion unable to do light[-]duty work, as it was alleged in August 2001.”
Appellant also resubmitted prior reports from Dr. Ali, prior reports from Dr. Bruce
Kraemer dated June 13 and December 13, 2001, a prior May 20, 2001 nerve conduction study, as
well as prior radiology reports from a Veterans Administration hospital.
By decision dated September 15, 2006, the Office denied appellant’s request for
reconsideration without a merit review, finding that appellant had not timely requested
reconsideration and had failed to submit factual or medical evidence sufficient to establish clear
evidence of error. The Office stated that appellant was required to present evidence which
showed that the Office made an error, and that there was no evidence submitted that showed that
its final merit decision was in error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act4 does not entitle an
employee to a review of an Office decision as a matter of right.5 This section, vesting the Office
with discretionary authority to determine whether it will review an award for or against
compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
4

5 U.S.C. § 8128(a).

5

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).

3

The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).6 As one such limitation, the Office has stated
that it will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.7 The Board has found that the
imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted by the Office under 5 U.S.C. § 8128(a).8
In those cases where a request for reconsideration is not timely filed, the Board had held
however that the Office must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.9 Office procedures
state that the Office will reopen an appellant’s case for merit review, notwithstanding the oneyear filing limitation set forth in 20 C.F.R. § 10.607(b), if appellant’s application for review
shows “clear evidence of error” on the part of the Office.10
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by the Office.11 The evidence must be positive, precise and explicit and
must be manifested on its face that the Office committed an error.12 Evidence which does not
raise a substantial question concerning the correctness of the Office’s decision is insufficient to
establish clear evidence of error.13 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.14 This entails a limited review by the Office of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of the Office.15 To
show clear evidence of error, the evidence submitted must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must be of
sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office’s decision.16 The Board makes
6

Although it is a matter of discretion on the part of the Office whether to review an award for or against payment
of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by (1) showing that
the Office erroneously applied or interpreted a point of law, or (2) advancing a relevant legal argument not
previously considered by the Office, or (3) constituting relevant and pertinent new evidence not previously
considered by the Office. See 20 C.F.R. § 10.606(b).
7

20 C.F.R. § 10.607(b).

8

See cases cited supra note 5.

9

Rex L. Weaver, 44 ECAB 535 (1993).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

11

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

12

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

13

See Jesus D. Sanchez, supra note 5.

14

See Leona N. Travis, supra note 12.

15

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

16

Leon D. Faidley, supra note 5.

4

an independent determination of whether an appellant has submitted clear evidence of error on
the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.17
ANALYSIS
The Office properly determined in this case that appellant failed to file a timely
application for review. The last merit decision in this case was the Board’s last decision dated
August 13, 2004. Appellant requested reconsideration on September 11, 2006; thus, the
reconsideration request is untimely as it was outside the one-year time limit.
The Board finds that appellant’s September 11, 2006 request for reconsideration failed to
show clear evidence of error. Appellant noted that as a courtesy she was resubmitting a number
of reports which were previously considered by the Office and the Board. She stated that these
reports established that she still had residuals of her carpel tunnel syndrome, such that the Office
did not meet its burden of proof to terminate her benefits in January 2002. Appellant’s request
for reconsideration misstates the issue. The Office did not terminate compensation because
appellant no longer had residuals of the accepted injury, but rather because appellant refused an
offer of suitable work.
The only new medical report submitted in support of the untimely request for
reconsideration was the February 18, 2004 report from Dr. Ali, whose February 18, 2004 report
is of limited probative value as it did not provide a reasoned medical opinion on the relevant
issue; i.e., whether appellant established as of January 29, 2002 that her refusal of suitable work
was justified.
Dr. Ali stated that appellant was unable to perform light-duty work as of August 17, 2001
due to chronic, disabling pain caused by cervical radiculopathy, lumbar radiculopathy, carpal
tunnel syndrome, ulnar neuropathy, pain and paresthesias in the arms and neck and collapsing
extremities with dysesthesias in the hands and arms. However, he did not consider the suitability
of the offered position. A determination that an offered position is medically suitable is based on
medical evidence at the time the position is offered and includes consideration of
nonemployment-related conditions as well as employment related.18 Appellant failed to submit
any medical evidence with respect to her inability to perform the information clerk position as of
January 29, 2002 due to her accepted right carpal tunnel condition. As the Board noted in its
November 21, 2002 and August 13, 2004 decisions, a review of the medical evidence of record
does not establish that the Office erred in finding the offered position was medically suitable.
Dr. Ali’s February 18, 2004 report was not contemporaneous with the offer of the position and
the termination of benefits in 2002. Further, the report was cumulative and repetitive of reports
previously rejected by the Board and the Office. No other evidence was received by the Office.
Therefore, appellant has failed to demonstrate clear evidence of error on the part of the Office.

17

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

18

See Janice S. Hodges, 52 ECAB 379 (2001).

5

The Office reviewed the evidence appellant submitted and properly found it to be
insufficient to prima facie shift the weight of the evidence in favor of appellant. Consequently,
the evidence submitted by appellant on reconsideration is insufficient to establish clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review. The Board finds that the Office did not abuse its discretion in denying further merit
review.19
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of the Office in her reconsideration request dated September 11, 2006. Inasmuch as
appellant’s reconsideration request was untimely filed and failed to establish clear evidence of
error, the Office properly denied further review on September 15, 2006.
ORDER
IT IS HEREBY ORDERED THAT the September 15, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

19

The Board notes that appellant submitted additional evidence to the record following the October 26, 2004
Office decision. The Board’s jurisdiction is limited to a review of evidence which was before the Office at the time
of its final review. 20 C.F.R. § 501.2(c). Appellant’s attorney alleges that this evidence was received by the Office
prior to its January 8, 2007 decision. However, this evidence is not contained in the instant record and appellant’s
attorney has provided no documentary support for this assertion.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
NATIONAL GUARD, Raleigh, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Martin Kaplan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0490
Issued: June 27, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 4, 2017 appellant, through counsel, filed a timely appeal from a
December 15, 2016 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to a February 7, 2014 employment incident.
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.

FACTUAL HISTORY
On March 14, 2014 appellant, then a 44-year-old air traffic control specialist, filed a
traumatic injury claim (Form CA-1) alleging that on February 7, 2014 he experienced pain in his
left shoulder by rotating a jack handle for approximately five minutes while jacking up a large
piece of equipment. He stopped work on March 3, 2014 and returned to work on
March 17, 2014.
A physician assistant, on February 27, 2014, noted that appellant had undergone a left
rotator cuff repair in March 2013 and had returned to his usual exercise routine in January 2014.
Approximately, three weeks prior to the examination, appellant noted having experienced left
scapular pain after “rotating some equipment at work.” The shoulder pain increased at that time
and he had numbness radiating into his left upper extremity. The physician assistant diagnosed
left arm and scapular pain with possible radiculopathy. She indicated that her supervising
physician was Dr. Leo Spector, a Board-certified orthopedic surgeon.3
A magnetic resonance imaging (MRI) scan study, obtained on February 27, 2014,
revealed a C6-7 large left posterolateral and foraminal disc herniation compressing the left C7
nerve root and ventral cord.
In a report dated March 3, 2014, Dr. Spector related, “[Appellant] states that, in January,
he was doing routine exercises and felt severe pain in his neck with radiation down his left upper
extremity, numbness and tingling in a C7 dermatomal distribution.” He noted that an MRI scan
study showed a large C6-7 left disc herniation compressing the left C7 nerve root. Dr. Spector
diagnosed a left herniated nucleus pulposus at C6-7 with left C7 radiculopathy. He
recommended surgery. On March 7, 2014 Dr. Spector performed an anterior cervical
discectomy and fusion at C6-7.
OWCP, by letter dated December 29, 2014, advised appellant that it had paid a limited
amount of medical expenses as his injury appeared minor and was not controverted. It was now
formally adjudicating his claim. OWCP requested that appellant submit additional factual and
medical information, including a detailed report from his attending physician addressing causal
relationship between any diagnosed condition and the identified work incident.
In a January 21, 2015 response, appellant related that on February 7, 2014 he assisted a
coworker by turning a jack repeatedly for around five minutes. He felt some neck and left
shoulder discomfort, but did not believe that it was significant. Over the next couple of days,
appellant’s pain increased and on February 19, 2014 he informed his supervisor that he required
medical treatment. He described the medical treatment received and noted that he underwent
surgery on March 7, 2014.
Appellant, in a statement dated January 22, 2015, advised that he did not immediately
inform his supervisor of the alleged incident because he did not believe that it was serious since
the pain began gradually and increased with time.
3

In a progress report dated February 28, 2014, the physician assistant diagnosed left radiculopathy and a disc
herniation at C6-7 compressing the C7 nerve on the left side.

2

In progress reports dated March through June 2014, Dr. Spector described appellant’s
condition after his anterior cervical discectomy and fusion at C6-7.
By decision dated February 4, 2015, OWCP denied appellant’s claim for a traumatic
injury. It found that the medical evidence of record was insufficient to establish that he sustained
a diagnosed condition causally related to the February 7, 2014 work incident.
Dr. Spector, in a report dated February 24, 2015, related that he treated appellant
beginning March 3, 2014 for a herniated disc at C6-7 requiring surgery. He advised that his
physician assistant had obtained appellant’s medical history of a March 2013 rotator cuff surgery
following which appellant had resumed normal exercises. While rotating equipment at work,
appellant experienced left scapular pain. Dr. Spector related:
“The work[-]related incident was a contributing factor [in] the ultimate herniation
of his disc. A healthy disc does not herniate and, therefore, there is underlying
preexisting degeneration that must occur; however, in this instance there was a
specific work-related incident that in all likelihood caused the final herniation to
occur and, therefore, this is an asymptomatic preexisting condition made
symptomatic by a work-related injury.”
On March 11, 2015 appellant requested reconsideration based on the February 24, 2015
report from Dr. Spector.
In a report dated February 20, 2014, received by OWCP on April 15, 2015, a nurse
practitioner diagnosed a backache and subscapular bursitis. On February 24, 2014 a physician
assistant diagnosed neck sprain or strain.
By decision dated April 23, 2015, OWCP denied modification of its February 4, 2015
decision. It found that Dr. Spector’s opinion was speculative and thus insufficient to show that
appellant sustained an employment-related condition on February 7, 2014.
On March 16, 2016 Dr. William A. Somers, a Board-certified orthopedic surgeon,
discussed appellant’s history of a left rotator cuff condition in 2002 and a left rotator cuff repair
in 2013, following which he resumed full duty. Appellant did not experience problems with his
neck, upper back, or left arm until February 2014, when he used a lever on a mechanical device
and “felt a twinge in the posterolateral cervical spine region.” His symptoms worsened and he
began to have radiculopathy. Appellant underwent surgery for a herniated disc with substantial
improvement. Dr. Somers diagnosed a herniated nucleus pulposus at C6 with radiculopathy
either caused or aggravated by the February 2014 injury, degenerative cervical disc disease
aggravated by the February 2014 injury, and residual fine motor dexterity loss due to the
February 2014 injury. He opined:
“There is no doubt that all of [appellant’s] symptoms originate with the injury
using the crank arm. Prior to that, there is no history of cervical discomfort or
radiculopathy. After that injury, cervical discogenic and radiculopathic pain
began. Although [appellant] has a history of being very active throughout his life,
there is no prior history of injury causing cervical spine difficulty. His
degenerative arthritis in the cervical spine does predate his injury, but was totally
3

asymptomatic prior to February 2014. Therefore, all of [appellant’s] current
symptoms are related to his work injury dated February 2014. One cannot say
whether the disc herniation at C6 is new, old, or increased in size related to his
February 2014 injury.”
Appellant, through counsel, on March 17, 2016 requested reconsideration. He argued
that the opinion of Dr. Somers was sufficient to meet his burden of proof or require further
development.
In a decision dated December 15, 2016, OWCP denied modification of its April 23, 2015
decision. It found that Dr. Somers’ opinion was insufficiently rationalized to establish that
appellant sustained an injury on February 7, 2014.
On appeal counsel argues that Dr. Somers’ report either establishes appellant’s claim or is
sufficient to require further development of the medical evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an “employee of the
United States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of proof to demonstrate the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.8 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.9

4

Supra note 2.

5

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

7

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

8

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

Id.

4

ANALYSIS
Appellant alleged that he sustained an injury to his cervical spine and left shoulder on
February 7, 2014 when he rotated a jack handle. OWCP has accepted that the incident occurred
at the time, place, and in the manner alleged. The issue, consequently, is whether the medical
evidence establishes that appellant sustained an injury as a result of this incident.
The Board finds that appellant has not established that the February 7, 2014 employment
incident resulted in an injury. The determination of whether an employment incident caused an
injury is generally established by medical evidence.10
Dr. Somers, in a report dated March 16, 2016, noted that appellant had returned to his
usual employment after a 2013 left rotator cuff repair. In February 2014, appellant felt a twinge
in his cervical spine after using a lever on a mechanical device. Prior to that time he had not
experienced neck, back, or left arm problems. Dr. Somers diagnosed a herniated nucleus
pulposus at C6 with radiculopathy caused or aggravated by the February 2014 injury,
degenerative cervical disc disease aggravated by the February 2014 injury, and residual fine
motor dexterity loss due to the February 2014 injury. He related that before appellant’s injury he
did not have cervical radiculopathy or pain and that his preexisting degenerative arthritis was
asymptomatic before the employment incident. Consequently, Dr. Somers attributed appellant’s
condition to his work injury, noting that he could not say if the disc herniation at C6 was old,
new, or changed in size after February 2014. A medical opinion, however, that a condition is
causally related to an employment injury because the employee was asymptomatic before the
injury, but symptomatic after it is insufficient, without supporting rationale, to establish causal
relationship.11 Dr. Somers did not provide a rationalized explanation of how rotating a jack
handle on February 7, 2014 caused or contributed to a diagnosed medical condition. Therefore,
his opinion is of limited probative value.12
Appellant also provided evidence from Dr. Spector. On March 3, 2014 Dr. Spector
obtained a history of appellant experiencing pain, numbness, and tingling radiating into his left
upper extremity in January 2014 after “doing routine exercises.” He diagnosed a C6-7 herniated
disc with left-side C7 radiculopathy. As Dr. Spector related a history of appellant experiencing
radiating left arm pain in January 2014 rather than an injury on February 7, 2014, his report does
not support the claim.
In a report dated February 24, 2015, Dr. Spector advised that he had treated appellant
since March 3, 2014 for a herniated C7 disc and resulting surgery. He discussed appellant’s
history, noting that he resumed normal exercises after March 2013 rotator cuff surgery and that
he experienced left scapular pain rotating equipment at work. Dr. Spector opined that the
employment incident contributed to the herniation of the disc. He noted that a healthy disc did
10

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

11

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

12

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

5

not herniate. Dr. Spector found that appellant had an underlying preexisting degenerative
condition, but that “in all likelihood” the work injury caused the final herniation. He did not,
however, explain how rotating a jack handle on February 7, 2014 caused a herniated disc. A
physician must provide an opinion on whether the employment incident described caused or
contributed to claimant’s diagnosed medical condition and support that opinion with medical
reasoning to demonstrate that the conclusion reached is sound, logical and rationale.13
Additionally, Dr. Spencer’s finding that the work injury “in all likelihood” caused the herniation
is speculative in nature and thus insufficient to meet appellant’s burden of proof.14 The need for
rationale is particularly important as the evidence indicates that appellant has a preexisting
degenerative condition.15 Other reports from Dr. Spector are of limited probative value as they
did not specifically address causation.16 Thus, the evidence from Dr. Spector is insufficient to
establish the claim.
Appellant also provided evidence from a nurse practitioner and a physician assistant.
Nurse practitioners and physician assistants are not considered “physicians” under FECA,
however, and thus cannot render a medical opinion.17 Therefore, their reports have no probative
value.
On appeal counsel argues that Dr. Somers’ report either establishes appellant’s claim or is
sufficient to require further development of the medical evidence. He has the burden of proof,
however, to submit reasoned medical evidence supporting that the February 7, 2014 work
incident caused or aggravated appellant’s cervical condition. As found, the medical evidence of
record is insufficient to meet appellant’s burden of proof.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to a February 7, 2014 employment incident.

13

John W. Montoya, 54 ECAB 306 (2003).

14

Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need
not be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
15

See R.R., Docket No. 16-1118 (issued November 7, 2016) (where the Board held that the need for rationale is
particularly important where the evidence indicated that appellant had a preexisting condition).
16

Id.; see also A.D., 58 ECAB 149 (2006).

17

See 5 U.S.C. § 8101(2); D.C., Docket No. 16-1457 (issued May 18, 2017) (nurse practitioner); Allen C.
Hundley, 53 ECAB 551 (2002) (physician assistants).

6

ORDER
IT IS HEREBY ORDERED THAT the December 15, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 27, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7