United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Barbara, CA, Employer
__________________________________________

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Appearances:
Raquell K. Denio, for the appellant
Office of Solicitor, for the Director

Docket No. 14-444
Issued: June 20, 2014

Case Submitted on the Record

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

JURISDICTION
On December 26, 2013 appellant, through her representative, filed a timely appeal from
the September 17, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP), which denied her request for reconsideration on the grounds that it was not timely filed
and failed to establish clear evidence of error.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review this decision. Because more than 180 days elapsed between the last OWCP merit
decision dated December 19, 2011 and the filing of the appeal, the Board lacks jurisdiction to
review the merits of this case.3

1

On appeal, appellant submitted new evidence. The Board has no jurisdiction to review new evidence on appeal.
See 20 C.F.R. § 501.2(c).
2
3

5 U.S.C. §§ 8101-8193.

For OWCP decisions issued prior to November 19, 2008, a claimant has up to one year to file a Board appeal.
See 20 C.F.R. § 501.3(d)(2). For OWCP decisions issued on or after November 19, 2008, a claimant has 180 days
to file a Board appeal. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly determined that appellant’s reconsideration request
was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On December 21, 2009 appellant, then a 55-year-old modified window clerk, filed an
occupational disease claim (Form CA-2) alleging that a change in her limited duty caused a
worsening of her bilateral carpal tunnel syndrome, ulnar neuritis and tenosynovitis of the right
shoulder. She stopped work on September 14, 2009. At the time of this claim, appellant was
performing modified work duties due to another work-related injury.4 She also subsequently
attributed a cervical condition to her work duties.
By decision dated February 9, 2010, OWCP denied the claim on the basis that fact of
injury was not established. It found the evidence insufficient to establish how appellant’s work
duties changed starting on June 13, 2009. OWCP also found that there was no medical evidence
providing a diagnosis which could be connected to the claimed event(s).
Appellant requested a review of the written record by OWCP’s Branch of Hearings and
Review. By decision dated June 29, 2010, an OWCP hearing representative vacated the
February 9, 2010 decision and remanded the case for further development. The hearing
representative found that while appellant’s specific allegations regarding the duties she
performed are not established by the evidence of record, the employing establishment agreed that
she was assigned window duties exclusively when no other work was available. The hearing
representative also found that there was sufficient evidence to support that appellant may have
sustained a worsening in her upper extremity conditions as a result of her window duties. The
hearing representative remanded the case for additional medical development and referral to an
appropriate specialist for a second opinion evaluation with regard to any medical condition
caused or changed by the work duties performed from August 7 through September 11, 2009.
By decision dated May 18, 2011, OWCP denied the claim on the basis that causal
relation had not been met. Determinative weight was accorded to the second opinion evaluation
of Dr. H. Harlan Bleecker, a Board-certified orthopedic surgeon, who opined that none of the
claimed diagnosed conditions were related to the factually established employment duties as a
modified window clerk. He determined that there were documented symptoms of carpal tunnel
syndrome.5

4

Under claim number xxxxxx485, OWCP accepted the condition of bilateral carpal tunnel syndrome with a date
of injury of March 1, 1994. It paid appropriate benefits including authorized surgeries for left-sided carpal tunnel
release and flexor tenosynovectomy and right-sided carpal tunnel release and flexor tenosynovectmy. Appellant
worked a modified permanent light-duty position until April 14, 2009, when the employing establishment offered
her another light-duty position.
She worked in the new light-duty position from April 14 through
September 12, 2009.
5

Claim number xxxxxx485, which OWCP accepted for bilateral carpal tunnel syndrome, remains open for
medical treatment.

2

Appellant requested an oral hearing before an OWCP hearing representative, which was
held on September 30, 2011. She submitted arguments, as well as additional evidence, including
witness statements, photographs and medical reports. By decision dated December 19, 2011, an
OWCP hearing representative affirmed the May 18, 2011 decision. The hearing representative
found that appellant’s specific allegations regarding the duties that she performed were not
established by the evidence of record and the medical opinion of appellant’s treating physician
was not based on an accurate history of the duties appellant actually performed or was
sufficiently reasoned to change the weight of medical opinion.
In a December 14, 2012 letter, which OWCP received on December 26, 2012, appellant,
through her representative, requested reconsideration. Citing numerous OWCP procedures and
case law, the representative argued that appellant met her factual burden of proof relative to
performing exclusive window duties; the statement of accepted facts provided by OWCP to the
second opinion examiner was deficient and did not give any credit to the evidence or statements
provided by appellant regarding her modified duties; the second opinion examiner was asked
misleading questions regarding the case; the second opinion examiner’s opinion was not
rationalized or sufficiently explained; the medical reports from appellant’s treating physicians
were sufficient to meet her burden of proof or to cause a conflict in medical opinion evidence;
and the witness statements from appellant should not be disregarded.
In support of her reconsideration request, appellant submitted a December 12, 2012
declaration under oath; additional witness statements from Coworkers Julio Davila and Michael
Post regarding appellant’s duties; October 23 and November 21, 2012 and May 8, 2013 progress
reports from Dr. Daniel A. Capen, a Board-certified orthopedic surgeon. Duplicative copies of
evidence already of record were also submitted.
In a May 6, 2013 letter, the employing establishment pointed out discrepancies in
appellant’s description of her modified duties supported by the evidence of record and asserted
that the modified duties provided during the period June through September 2009 were in
accordance with her physician’s prescribed restrictions.
In an August 14, 2013 letter, appellant’s representative responded to the employing
establishment’s rebuttal.
By decision dated September 17, 2013, OWCP found that appellant’s request for
reconsideration was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.6 It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision.7 In
implementing the one-year time limitation, OWCP’s procedures provide that the one-year time
6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.607; see also D.K., 59 ECAB 141 (2007).

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limitation period for requesting reconsideration begins on the date of the original OWCP
decision. However, a right to reconsideration within one year accompanies any subsequent merit
decision on the issues.8
When an application for review is untimely, OWCP undertakes a limited review to
determine whether the application presents clear evidence that OWCP’s final merit decision was
in error.9 Its procedures state that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
application for review shows clear evidence of error on the part of OWCP.10 In this regard,
OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.11
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must 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 raise a substantial question as to the correctness of OWCP’s decision. The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP, such that OWCP abused its discretion in denying merit review in
the face of such evidence.12
ANALYSIS
By decision dated December 19, 2011, an OWCP hearing representative affirmed the
denial of appellant’s claim for an occupational disease on the grounds that causal relationship
had not been established. Appellant requested reconsideration of this decision in a letter dated
December 14, 2012, which OWCP received on December 26, 2012. In a September 17, 2013
decision, OWCP denied her request for further review of the merits of her claim on the grounds
that her request was untimely filed and failed to demonstrate clear evidence of error.

8

Veletta C. Coleman, 48 ECAB 367 (1997). Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).
9

A.F., 59 ECAB 714 (2008).

10

E.R., Docket No. 09-599 (issued June 3, 2009). See supra note 8 at Chapter 2.1602.3 (January 2004).

11

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

12

Id. See James R. Mirra, 56 ECAB 738 (2005).

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OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.13 A right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.14 The Board notes that, for merit
decisions issued prior to August 29, 2011, OWCP’s procedures provided that the timeliness for a
reconsideration request was determined not by the date OWCP received the request, but by the
postmark on the envelope.15 OWCP’s new procedures as of August 29, 2011 require that, for all
merit decisions issued on and after August 29, 2011, the timeliness of a reconsideration request
is determined by the date the request is received by OWCP.16 As appellant’s December 14, 2012
request for reconsideration was received by OWCP on December 26, 2012, more than one year
after the last merit decision of December 19, 2011, it was untimely. Consequently, she must
demonstrate clear evidence of error by OWCP in denying her claim for compensation.17
Appellant’s claim was denied on the grounds that she had not established causal
relationship. On reconsideration, she alleged that the statement of accepted facts was deficient
and the second opinion was asked misleading questions regarding the case as it did not include
all the employment factors identified and performed by her. Appellant also argued that the
second opinion examiner’s opinion was not rationalized or sufficiently explained and that the
medical reports from her treating physicians were sufficient to meet her burden of proof or to
cause a conflict in medical opinion evidence. These arguments, however, do not raise a
substantial question concerning the correctness of OWCP’s December 19, 2011 decision or
establish clear evidence of error. The hearing representative specifically found that appellant’s
allegations regarding the duties she performed were not established by the evidence of record;
thus, her allegations alone would not be part of the statement of accepted facts. The Board notes
that there is no evidence to suggest that the medical findings provided by the second opinion
physician were erroneous or that he was misled with regard to the facts of the case. Also there is
no evidence to suggest that the statement of accepted facts was incomplete or erroneous.
Appellant also submitted a December 12, 2012 declaration under oath; additional witness
statements from coworkers regarding her duties and progress reports from Dr. Capen. The
progress reports from Dr. Capen do not address the relevant issue involved, causal relationship.
While the statements from appellant and her coworkers provide varying accounts from those
reflected in the hearing representative’s decision, this does not amount to clear and convincing
evidence of error. The term clear evidence of error is intended to represent a difficult standard.
The claimant must present evidence which, on its face, shows that OWCP made an error (for
example, proof of a miscalculation in a schedule award). Evidence such as a detailed, wellrationalized report, which if submitted prior to OWCP’s denial, would have created a conflict in
medical opinion requiring further development, is not clear evidence of error and would not
13

20 C.F.R. § 10.607(a).

14

Robert F. Stone, 57 ECAB 393 (2005).

15

See supra note 8 at Chapter 2.1602.3(b)(1) (January 2004).

16

Id. at Chapter 2.1602.4(e) (August 29, 2011).

17

See supra note 13; see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005).

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require a review of a case.18 While the submitted evidence could possibly be construed to
produce a contrary conclusion, it does not present clear evidence of error in the hearing
representative’s decision.
The Board finds that this evidence is insufficient to shift the weight of the evidence in
favor of appellant’s claim or raise a substantial question that OWCP erred in denying her claim.
Therefore, the Board finds that she has not presented clear evidence of error.
On appeal, appellant’s representative contends that OWCP erred in considering her
request to be untimely as it was postmarked and mailed within one year from the December 19,
2012 decision. She contends that OWCP failed to give proper notice in its appeal rights
instructions with the December 19, 2012 decision regarding the change in OWCP’s regulations
regarding how timeliness of reconsideration requests was determined. Effective August 29,
2011, OWCP amended its regulations, after months of a comment period, to reflect that an
application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought19 as opposed to the use of the postmark to
determine timeliness.20 Contrary to the argument advanced by appellant’s representative, she
had sufficient notice that any request for reconsideration had to be submitted to OWCP within
one year of the date of the decision.21 Any change in OWCP’s regulations regarding the
timeliness of the submission of reconsideration requests is the responsibility of appellant.22
Appellant’s request was untimely as it was not received by OWCP until December 26, 2012,
more than one year after the last merit decision of December 19, 2011. Her other arguments on
appeal pertain to the merits of the case, over which the Board does not have jurisdiction.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and failed
to present clear evidence of error.

18

Annie L. Billingsley, 50 ECAB 210 (1998).

19

See supra note 13.

20

Prior to August 29, 2011, OWCP’s regulations provided in pertinent part: An application for reconsideration
must be sent within one year of the date of OWCP’s decision for which review is sought. If submitted by mail, the
application will be deemed timely if postmarked by the U.S. Postal Service within the time period allowed.
20 C.F.R. § 10.607(a) (April 1, 2011).
21

See G.T., Docket No. 13-1818 (issued January 7, 2014).

22

See B.J., 59 ECAB 660 (2008). The Board has held that an employee’s unawareness of possible entitlement,
lack of access to information or ignorance of the law of one’s rights and obligations under it do not constitute
exceptional circumstances that excuse a failure to file a timely claim.

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ORDER
IT IS HEREBY ORDERED THAT the September 17, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
SYRACUSE VETERANS MEDICAL CENTER,
Syracuse, NY, Employer
__________________________________________

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

Docket No. 14-43
Issued: March 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 16, 2013 appellant, through counsel, filed a timely appeal from a
September 16, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying her request for further merit review. As more than 180 days elapsed from the
last merit decision of February 7, 2013 to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 17, 2012 appellant, then a 46-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on March 8, 2011 she slipped on water on the floor and
injured her right shoulder. The employing establishment advised that the incident occurred in
the canteen prior to her tour of duty. No evidence was submitted with the claim.
In a December 27, 2012 letter, OWCP advised appellant of the deficiencies in her claim.
It requested additional factual and medical evidence. Appellant was accorded 30 days in which
to provide the information.
OWCP received appellant’s statement of January 24, 2013, a witness statement of
January 14, 2013 and a March 8, 2011 Veterans Administration Police report. Dr. P. James
Newman, a Board-certified orthopedic surgeon, dated October 11, 2012 and from Dr. James
Watts, a Board-certified internist, submitted reports dated March 13 to December 28, 2012 and a
physical therapy note dated March 16, 2012.
By decision dated February 7, 2013, OWCP denied appellant’s claim. It found that the
medical evidence did not establish that she sustained a right shoulder condition causally related
to the incident at work. OWCP noted that appellant also attributed her shoulder condition to an
injury on June 25, 2012, as reflected by the report of Dr. Newman.
In a February 11, 2013 letter, appellant’s counsel requested a telephonic hearing before
an OWCP hearing representative, which was held on June 11, 2013. In an April 2, 2013 report,
Dr. Newman stated that appellant was under his care for a right shoulder injury that occurred at
work on June 25, 2012 while lifting a laundry bag and putting it down a laundry chute. He
opined that her right shoulder rotator cuff tear was supported by diagnostic testing and physical
examination findings. Dr. Newman opined that the June 25, 2012 incident of lifting the laundry
bag and tossing it into the chute was a precipitating event causing the tear to appellant’s right
shoulder and the need for treatment.
At the June 11, 2013 hearing, OWCP’s hearing representative noted that appellant had a
separate claim, xxxxxx003, for a June 25, 2012 injury to her right shoulder. At the hearing,
appellant’s counsel stated that he wished to withdraw the hearing request and file the medical
evidence with appellant’s June 25, 2012 claim. In a June 13, 2013 letter, he requested that the
Branch of Hearings and Review dismiss his appeal as the issue would be pursued under the
separate claim. On June 24, 2013 the Branch of Hearings and Review accepted appellant’s
request for withdrawal of the hearing request.
In a September 3, 2013 letter, appellant’s attorney indicated that a request for
reconsideration was filed on June 12, 2013 and that he had a receipt documenting the request.2
By decision dated September 16, 2013, OWCP denied appellant’s request for
reconsideration without further review of the merits.

2

A copy of the June 12, 2013 request is not of record.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
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.4 To be entitled to a merit review
of an OWCP 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.5 When a claimant fails to
meet one of the above standards, it will deny the application for reconsideration without
reopening the case for review on the merits.6
ANALYSIS
OWCP denied appellant’s claim as the medical evidence failed to establish that her right
shoulder condition was causally related to a March 8, 2011 incident. As noted, the Board does
not have jurisdiction to review the merits of the case.7 The only issue before the Board is
whether OWCP properly denied appellant’s reconsideration request.
The Board finds that appellant did not establish that OWCP erroneously applied or
interpreted a specific point of law. Appellant did not advance a relevant legal argument not
previously considered. The Board finds, therefore, that she has not submitted a new and relevant
legal argument not previously considered by OWCP. Consequently, appellant is not entitled to a
review of the merits based on the first or second requirements under 20 C.F.R. § 10.606(b)(2).
The Board further finds that appellant also did not submit relevant and pertinent new
evidence not previously considered. Dr. Newman’s April 2, 2013 report, while new, did not
address the March 8, 2011 incident. He discussed a right shoulder injury that occurred at work
on June 25, 2012, which was adjudicated by OWCP under a separate claim. Dr. Newman’s
report is therefore irrelevant and immaterial to the claim of injury on March 8, 2011. The
submission of evidence that does not address the particular issue involved does not constitute a
basis for reopening a case.8 The Board finds, therefore, that Dr. Newman’s April 2, 2013 report
is insufficient to reopen appellant’s claim for a merit review. Appellant did not submit relevant
or pertinent new evidence not previously considered by OWCP. She is not entitled to a review
of the merits based on the third requirement under 20 C.F.R. § 10.606(b)(2).

3

Under section 8128 of FECA, 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 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

20 C.F.R. § 501.3(e).

8

R.M., 59 ECAB 690 (2008); Betty A. Butler, 56 ECAB 545 (2005).

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Because appellant did not show that OWCP erroneously interpreted a specific point of
law, advance a relevant legal argument not previously considered or submit relevant or pertinent
new evidence not previously considered by OWCP, it did not abuse its discretion in denying
appellant’s request for reconsideration.9
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for merit review under
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 16, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 13, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9

Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review such evidence for the first
time on appeal. 20 C.F.R. § 501.2(c).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 14-112
Issued: April 25, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

On October 10, 2013 appellant, through his attorney, filed an application for review of an
Office of Workers’ Compensation Programs’ (OWCP) decision dated July 25, 2013, which
denied his request for reconsideration on the grounds that the evidence submitted was repetitious
and insufficient to warrant merit review.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by it before the final decision is issued. Following a November 26, 2011
decision that denied appellant’s claim for an occupational disease on the grounds that he failed to
submit medical evidence establishing a causal relationship between the accepted work events and
his diagnosed condition, appellant, through counsel, requested reconsideration on
March 18, 2013. With this request, he submitted a new March 3, 2013 report from Dr. Stacy
David Treiman, a podiatrist, who noted x-ray findings of boney spurring, arthritic foot changes
and plantar fasciitis. Dr. Treiman noted that appellant worked for the employing establishment
for 25 years and opined that his foot arthritis was a direct result of standing on his feet while on
concrete. She noted that appellant’s work activities required him to walk on concrete, push and
1

41 ECAB 548 (1990).

pull mail in rolling equipment, bend and stand for up to six hours in one place sorting mail and
loading and unloading mail. Dr. Treiman opined that these work duties caused the joints of
appellant’s feet to undergo change which caused a break down in the support structure of the feet
causing bones to become worn and torn. She stated that there was a causal relationship between
his foot discomfort and working on his feet for the employing establishment for 25 years.
Dr. Treiman supported that appellant’s work duties caused or aggravated his bilateral foot
condition. This report was received by OWCP on March 18, 2013. On April 30, 2013 counsel
requested that OWCP address his March 18, 2013 reconsideration request. In its July 25, 2013
decision, OWCP denied appellant’s reconsideration request on the grounds that the evidence
submitted was repetitious and insufficient to warrant merit review. It noted receipt of his
reconsideration request and addressed previously submitted evidence but it did not consider the
March 3, 2013 report from Dr. Treiman.
The Board finds that OWCP, in its July 25, 2013 decision, did not review the
March 3, 2013 report from Dr. Treiman that was received by OWCP on March 18, 2013.2 For
this reason, the case will be remanded to OWCP to enable it to properly consider all the evidence
submitted at the time of the July 25, 2013 decision. Following such further development as
OWCP deems necessary, it shall issue an appropriate decision on the reconsideration request.
IT IS HEREBY ORDERED THAT the July 25, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case recorded is remanded to OWCP for
further proceedings consistent with this order of the Board.

2

See Linda Johnson, 45 ECAB 439, 440 (1994) (where the Board held that it is necessary that OWCP review all
evidence submitted by a claimant and received by OWCP prior to issuance of its final decision).

2

Issued: April 25, 2014
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Yuma, AZ, Employer
__________________________________________

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

Docket No. 18-0453
Issued: August 6, 2020

Case Submitted on the Record

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

JURISDICTION
On January 2, 2018 appellant filed a timely appeal from July 27 and September 7, 2017
merit decisions and two November 27, 2017 OWCP nonmerit decisions of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 27, 2017 decisions, 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish recurrences
of disability for the periods June 30 to July 6, 2014 and October 19 to November 1, 2014, causally
related to her accepted employment injury; and (2) whether OWCP properly denied appellant’s
requests for reconsideration of the merits of her claims pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 17, 2014 appellant, then a 40-year-old border patrol agent, filed an
occupational disease claim (Form CA-2) alleging an emotional condition due to factors of her
federal employment, including sexual harassment by a supervisor from July 6 to
August 31, 2012.4
On February 13, 2017 OWCP accepted the claim for major depressive disorder,
recurrent, moderate; post-traumatic stress disorder (PTSD), unspecified; generalized anxiety
disorder and panic disorder; and episodic paroxysmal anxiety without agoraphobia.
On June 8, 2017 appellant filed a claim for wage-loss compensation (Form CA-7) for
disability from work for the period October 19 to November 1, 2014.5 On an accompanying
time analysis form (Form CA-7a), appellant noted that she used leave without pay for the
claimed period and that the reason for the leave was temporary total disability per her
physician.
OWCP also received disability certificates from Dr. Inamdar, including a certificate
dated October 20, 2014 in which he placed appellant off work until December 2, 2014. In a
November 12, 2014 certificate, however, he released appellant to work on
November 17, 2014.

3

Docket No. 16-0699 (issued November 4, 2016).

4

In a narrative statement dated November 17, 2014, appellant set forth additional details regarding the alleged
sexual harassment and retaliation she had experienced at work. She also noted that on August 4, 2014 she began an
intensive outpatient program (IOP) at Sharp Mesa Vista Hospital at the recommendation of her treating psychiatrist,
Dr. Shashita Inamdar, a Board-certified psychiatrist. Appellant noted that, as part of mandatory settlement
negotiations of her Equal Employment Opportunity (EEO) claim, the employing establishment had offered to pay her
six weeks of administrative leave for her attendance at the outpatient treatment center at Sharp Mesa Vista Hospital.
She noted that in accepting a settlement she did not waive her right to pursue her current workers’ compensation claim.
5

The Board notes that appellant also has a claim for a January 7, 2013 traumatic injury accepted under OWCP File
No. xxxxxx036 for contusion of finger and sprains of neck, knee/leg, upper arm, and lumbar spine. Appellant’s claims
have not been administratively combined.

2

In a development letter dated June 21, 2017, OWCP informed appellant that it had
received her wage-loss compensation claim for the period October 19 through November 1,
2014, but noted that its records indicated that she had returned to work on January 2, 2014, in
a full-duty capacity. It therefore notified her that her claim for compensation was considered
a claim for a recurrence of disability. OWCP advised appellant of the definition of a
recurrence of disability and the type of evidence required to establish her claim. It afforded
her 30 days to submit additional evidence.
Appellant thereafter filed a Form CA-7 for disability from work for the period June 30
to July 6, 2014. On an accompanying Form CA-7a she indicated that she had used eight hours
of sick leave each day. Appellant noted temporary total disability as her reason for leave for
July 1 and 6, 2014, and for July 5, 2014 she noted temporary total disability/July 4, 2014
holiday.
OWCP received a June 30, 2014 disability certificate from Dr. Inamdar, placing
appellant off work until July 7, 2014.
In a development letter dated July 17, 2017, OWCP explained that it had received
appellant’s claim for 32 hours of compensation for total disability during the period June 30
to July 6, 2014; however, the medical evidence of record was insufficient to establish the
claim and additional evidence was required. It noted that she was working full time up to the
date of June 30, 2014, when Dr. Inamdar placed her off from work from June 30 to
July 7, 2014. OWCP explained that there was no medical report with medical rationale
establishing that the accepted conditions had worsened such that appellant was unable to work
from June 30 to July 6, 2014. It requested additional medical evidence to establish how her
accepted conditions spontaneously worsened, without an intervening event, such that she was
unable to work during the period June 30 to July 6, 2014. OWCP requested that appellant
submit the evidence within 30 days.
OWCP received an October 20, 2014 disability certificate from Dr. Inamdar noting
that appellant was recommended for an IOP program and that she should remain off work
until December 2, 2014.
By decision dated July 27, 2017, OWCP denied the claim for a recurrence for the period
October 19 to November 1, 2014, as the evidence submitted was insufficient to establish that she
was disabled from work during the claimed period due to a material change or worsening of her
accepted work-related conditions. It found that the physician had not provided examination
findings, nor had he discussed the cause of the claimed disability and its relationship to the original
injury and accepted employment factors.
By decision dated September 7, 2017, OWCP denied the claim for a recurrence for the
period June 30 to July 6, 2014, finding that the evidence submitted was insufficient to establish
that appellant was disabled from work during the claimed period due to a material change or
worsening of her accepted work-related conditions.

3

On November 21, 2017 appellant requested reconsideration of the July 27 and
September 7, 2017 decisions.
In support thereof, appellant submitted a July 12, 2017 progress report, wherein
Dr. Ruchira Densert, a Board-certified psychiatrist, diagnosed PTSD and major depressive
disorder. Dr. Densert also reviewed appellant’s treatment plan and indicated that she could return
to work on September 11, 2017 with no restrictions or limitations.
By decision dated November 27, 2017, OWCP denied appellant’s request for
reconsideration of the September 7, 2017 decision. It found that she had not raised substantive
legal questions or included relevant and pertinent new evidence sufficient to warrant a review of
the prior decision.
By separate decision dated November 27, 2017, OWCP denied appellant’s request for
reconsideration of the July 27, 2017 decision.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition that had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.6
An employee who claims a recurrence of disability resulting from an accepted employment
injury has the burden of proof to establish that the disability is related to the accepted injury. This
burden requires furnishing medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and supports that conclusion with sound medical reasoning.7
OWCP procedures provide that wages lost for compensable medical examinations or
treatment may be reimbursed.8 A claimant who has returned to work following an accepted injury
or illness may need to undergo examination or treatment and such employee may be paid
compensation for wage loss while obtaining medical services and for a reasonable time spent
traveling to and from the medical provider’s location.9 Wage loss is payable only if the
examination, testing, or treatment is provided on a day which is a scheduled workday and during
a scheduled tour of duty. Wage-loss compensation for medical treatment received during off-duty
hours is not reimbursable.10 The evidence should establish that a claimant attended an examination
6

20 C.F.R. § 10.5(x); see D.T., Docket No. 19-1064 (issued February 20, 2020).

7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment, Chapter
2.901.19 (February 2013).
9

Id. at Chapter 2.901.19.a.

10

Id. at Chapter 2.901.19.a(2).

4

or treatment for the accepted work injury on the dates claimed in order for compensation to be
payable.11 For a routine medical appointment, a maximum of four hours of compensation may be
allowed. However, longer periods of time may be allowed when required by the nature of the
medical procedure and/or the need to travel a substantial distance to obtain the medical care. The
claims for wage loss should be considered on a case-by-case basis.12
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture.
On June 8, 2017 appellant filed a claim for wage-loss compensation (Form CA-7) for
disability from work for the period October 19 to November 1, 2014. On an accompanying time
analysis form (Form CA-7a) she noted that she used leave without pay for the claimed period and
that the reason for the leave was temporary total disability per her physician. Appellant thereafter
filed a Form CA-7 for disability from work for the period June 30 to July 6, 2014. On an
accompanying Form CA-7a she indicated that she had used eight hours of sick leave each day.
As noted, wages lost for compensable medical examinations or treatment may be
reimbursed.13 To be compensable, the evidence should establish that a claimant attended an
examination or underwent treatment for the accepted work injury on the dates claimed in order for
compensation to be payable, and for a routine medical appointment a maximum of four hours of
compensation may be allowed.14 However, wage loss is payable only if the examination, testing,
or treatment is provided on a day which is a scheduled workday and during a scheduled tour of
duty. Wage-loss compensation for medical treatment received during off-duty hours is not
reimbursable.15
The Board finds that the record does not contain sufficient information regarding exactly
what dates and hours that appellant lost wages due to attendance at medical appointments or for
treatment of the accepted conditions. The case must therefore be remanded to develop the record
regarding time lost, if any, for medical appointments or treatment as allowed under FECA, to be
followed by a de novo decision on appellant’s claims for recurrence of disability.16

11

Id. at Chapter 2.901.19.a(3).

12

Id. at Chapter 2.901.19.c.

13

See supra note 7.

14

See supra note 11.

15

See supra note 9.

16
Upon return of the claim file, OWCP shall administratively combine the present file with OWCP File No.
xxxxxx036.

5

CONCLUSION
The Board finds that the case is not in posture for decision.17
ORDER
IT IS HEREBY ORDERED THAT the July 27, September 7, and November 27, 2017
decisions are set aside and the case is remanded for proceedings consistent with this decision of
the Board.
Issued: August 6, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

17

Based upon the outcome of issue 1, issue 2 is rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS MEDICAL CENTER,
Bay Pines, FL, Employer
__________________________________________

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

Docket No. 08-353
Issued: May 22, 2008

Case Submitted on the Record

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

JURISDICTION
On November 14, 2007 appellant filed a timely appeal of an October 16, 2007 merit
decision of the Office of Workers’ Compensation Programs denying authorization for surgery.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d) (2), the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether the Office properly denied authorization for left knee arthroplasty.
FACTUAL HISTORY
The Office accepted that appellant, then a 47-year-old practical nurse, sustained several
conditions as a result of a fall at work on April 15, 2004, including contusion of the left elbow
and knee and tear of the medial and lateral cartilage of the left knee. She did not stop work.1
1

The record reflects that appellant had preexisting bilateral osteoarthritis of the knee.

An April 15, 2004 x-ray of the left knee read by Dr. Anthony P. Garritano, a Boardcertified diagnostic radiologist, revealed no evidence of fracture with moderately severe
degenerative disease and hypertrophic changes of the joint margins and of the medial tibial spine
and patella.
In an April 29, 2004 report, Dr. Joseph Sena, a Board-certified orthopedic surgeon, noted
that appellant was seen for a slip and fall which occurred at work. He also noted that she was
seen by an orthopedic surgeon “in January of this year and that he advised her that she would
need a knee replacement.” A June 2, 2004 magnetic resonance imaging (MRI) scan read by
Dr. Abner M. Landry, a Board-certified diagnostic radiologist, revealed moderate joint effusion
with complex tears of the medial and lateral menisci (worse in the medial meniscus) with kissing
bone bruises of the medial femoral condyle and medial tibial plateau, with osteoarthritic changes.
In a June 11, 2004 report, Dr. Sena opined that appellant needed arthroscopic surgery of the left
knee. He stated that the April 15, 2004 x-rays revealed findings “indicative of degenerative joint
disease of the knee with spurring of the superior and inferior patella and spurring on the femoral
side of the patellofemoral joint and medial joint space narrowing.” Dr. Sena noted that appellant
“would like to hold off on knee replacement but knee replacement in this individual is
inevitable.”
Appellant underwent an authorized left knee arthroscopy on August 6, 2004 and received
appropriate compensation benefits.2
Appellant continued being treated for left knee arthritis and pain. In a February 8, 2007
report, Dr. William Lowry, a Board-certified orthopedic surgeon who took over appellant’s
treatment after Dr. Sena’s office closed, noted that appellant had ongoing pain in her left knee
since April 2004. He noted appellant’s August 2004 surgery, examination findings and stated
that knee x-rays showed severe osteoarthritis with complete obliteration of the medial joint space
in both knees. There was more varus deformity in the left knee. Dr. Lowry listed an impression
of bone on bone osteoarthritis with varus deformity. He advised that appellant requested to be
considered for a total knee arthroplasty. In a March 1, 2007 report, Dr. Lowry noted appellant’s
continuing complaints and diagnosed bilateral knee arthritis, more severe on the left, “secondary
to previous injuries.” He noted that appellant would undergo a lubricating injection to the left
knee but opined that she would likely need a total knee arthroplasty. In a May 3, 2007 report,
Dr. Lowry requested authorization for a total knee arthroplasty of the left knee. On May 23,
2007 Dr. Lowry repeated his request for authorization.
In a May 29, 2007 report, an Office medical adviser recommended against authorizing
left knee surgery. He noted that appellant’s claim was only accepted for contusion to the left
knee with a tear of the medial and lateral meniscus. The Office medical adviser indicated that
the degenerative arthritis of her left knee was a preexisting condition and not work related. He
further noted that initial x-rays of the left knee on the date of the injury revealed severe
degenerative disease of the left knee.
On September 17, 2007 the Office referred appellant for a second opinion to
Dr. Jeffrey M. Oettinger, a Board-certified orthopedic surgeon.
2

Appellant returned to work full time, in a modified-duty capacity.

2

In a report dated October 8, 2007, Dr. Oettinger described appellant’s history of injury
and treatment, which included an August 6, 2004 arthroscopy with a postoperative diagnosis of
degenerative joint disease in the left knee with a meniscal tear. He also reviewed an
April 29, 2004 report from Dr. Sena, who noted that, earlier, her orthopedic surgeon had
indicated that she would need a knee replacement. Dr. Oettinger advised that, at the time of
injury, a bone scan revealed moderate severe degenerative joint disease in the left knee. He
conducted a physical examination and diagnosed bilateral advanced varus tricompartmental
degenerative joint disease of both knees. Dr. Oettinger opined that appellant’s “injury was an
aggravation of a preexisting condition. The aggravation was appropriately managed medically,
injections therapeutically as well as arthroscopically. The continued symptoms are a natural
progression of the preexisting condition. The need for total knee arthroplasty was present prior
to injury as well as postinjury with the appropriate management intervening.”
By decision dated October 16, 2007, the Office denied authorization for the proposed
surgery. The Office found the weight of the medical evidence did not establish that surgery was
medically necessary or related to the accepted injury.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability, or aid in
lessening the amount of the monthly compensation.3 The Office has the general objective of
ensuring that an employee recovers from his injury to the fullest extent possible in the shortest
amount of time. The Office therefore has broad administrative discretion in choosing means to
achieve this goal.4 The only limitation on the Office’s authority is that of reasonableness.5
For a surgery to be authorized, a claimant must submit evidence to show that the
requested procedure is for a condition causally related to the employment injury and that it is
medically warranted. Both of these criteria must be met in order for the Office to authorize
payment.6
ANALYSIS
Dr. Lowry, appellant’s treating physician, requested authorization for arthroplasty of the
left knee. However, an Office medical adviser advised against the proposed surgery, noting
appellant’s claim was only accepted for a contusion and tear of the medial and lateral meniscus.
3

5 U.S.C. § 8103(a).

4

Dale E. Jones, 48 ECAB 648, 649 (1997).

5

Daniel J. Perea, 42 ECAB 214 (1990) (holding that abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts).
6

R.C., 58 ECAB ___ (Docket No. 06-1676, issued December 26, 2006).

3

He stated that appellant’s degenerative arthritis preexisted the accepted injury and was not work
related.7 The Office referred appellant for a second opinion examination with Dr. Oettinger, a
Board-certified orthopedic surgeon, to determine whether the surgery was warranted.
In an October 8, 2007 report, Dr. Oettinger noted appellant’s history of injury and
treatment. He noted appellant’s history of injury and treatment, which included that on
August 6, 2004 she underwent an arthroscopy which included a postoperative diagnosis of
degenerative joint disease in the left knee with a meniscal tear. Dr. Oettinger also indicated that
on April 29, 2004 appellant’s treating physician noted that her orthopedic surgeon had previously
advised her that she would need a knee replacement. He further explained that, at the time of the
injury, a bone scan revealed that appellant had moderate to severe degenerative joint disease in
the knee. Dr. Oettinger conducted a physical examination and diagnosed bilateral advanced
varus tricompartmental degenerative joint disease of the knees. He opined that appellant’s
“injury was an aggravation of a preexisting condition.” Dr. Oettinger also determined that the
aggravation was appropriately managed with injections and arthroscopically. He indicated that
appellant’s continued symptoms were a natural progression of the preexisting condition.
Furthermore, Dr. Oettinger advised that the need for total knee arthroplasty was present prior to
injury as well as postinjury, including the appropriate intervening management.
The Board finds that the weight of the medical evidence lies with Dr. Oettinger, a Boardcertified orthopedic surgeon, who examined appellant, reviewed the record and provided a
reasoned medical opinion explaining why the medical authorization in question should not be
given. Dr. Oettinger indicated that, while surgery would be necessary, it was not due to
appellant’s accepted condition but was due to the progression of appellant’s preexisting
degenerative joint disease. Similarly, the Office medical adviser found that the need for surgery
was due to the preexisting condition and not the accepted contusion and meniscal tear.
Dr. Lowry, on the other hand, did not specifically address or explain why the surgery was
causally related to the employment injury. Based on the evidence of record, the Office
reasonably concluded that the proposed surgery was not medically necessary for treatment of an
employment-related condition. The Office did not abuse its discretion in denying authorization
for arthroscopic surgery in this case.
CONCLUSION
The Board finds that the Office properly exercised its discretion pursuant to 5 U.S.C.
§ 8103(a) in refusing to authorize appellant’s request for left knee arthroplasty surgery.

7

The Office did not accept arthritis or any degenerative condition of the knee as being employment related. See
Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or approved by the
Office was due to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury).

4

ORDER
IT IS HEREBY ORDERED THAT the October 16, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 22, 2008
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 07-1287
Issued: September 20, 2007

Case Submitted on the Record

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

JURISDICTION
On April 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 4, 2007 nonmerit decision denying her request for further
merit review of her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over this nonmerit decision. The last merit decision of record was the Office’s
December 6, 2005 decision. Because more than one year has elapsed between the last merit
decision and the filing of this appeal on April 10, 2007, the Board lacks jurisdiction to review the
merits of this claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
On July 20, 2005 appellant, then a 34-year-old teleservice representative, filed a
traumatic injury claim alleging that on July 18, 2005 she sustained an injury to her back, neck,

shoulder, head, left leg, wrist and arms when she slipped on construction dust while exiting the
elevator. A witness statement was included in her claim. In support of her claim, medical
documentation was submitted including a visit note and an attending physician’s report from
Dr. Alejandro B. Platon, a chiropractic physician, both dated July 19, 2005. Dr. Platon
diagnosed lumbosacral neuritis, cervalgia and sprain of the left shoulder.
On October 12, 2005 the Office requested additional medical information in support of
appellant’s claim. On October 26, 2005 the Office informed appellant that chiropractors are
deemed physicians only to the extent that the treatment is for a subluxation demonstrated by an
x-ray. Her chiropractor was not considered a physician as he did not diagnose subluxation and
the medical evidence she submitted had no value to establish her claim.
On December 6, 2005 the Office denied appellant’s claim on the grounds that there was
no medical evidence of a diagnosis connected to the accepted accident.
On December 18, 2006 appellant requested reconsideration arguing that she did not
receive the denial letter due to a change in address. She also submitted a December 15, 2006
letter from Dr. Platon in which he clarified his opinion that appellant’s condition was caused by
an employment activity.
On January 4, 2007 the Office denied reconsideration on the grounds that the request was
made more than one year after the last merit decision and did not present clear evidence of error.
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.1
The Office 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.2 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.3 The Office procedure manual
states that the Office will reopen a claimant’s case for merit review, notwithstanding the oneyear filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review
shows clear evidence of error on the part of the Office.4 In this regard, the Office will limit its
focus to a review of how the newly submitted evidence bears on the prior evidence of record.5

1

5 U.S.C. §§ 8101-8193

2

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

3

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

4

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: [The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous. 20
C.F.R. § 10.607(b).
5

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

2

To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.6 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinions 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.7 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.8
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. The Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date following the original Office decision.9 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.10
In this case, appellant’s December 18, 2006 letter requesting reconsideration was submitted more
than one year after the last merit decision of record, December 6, 2005, and, thus, it was
untimely. Consequently, she must demonstrate clear evidence of error by the Office in denying
her claim for compensation.11
Appellant contends that her request was a few days late because she did not receive the
denial letter due to a change in address. The December 6, 2005 decision was sent to appellant’s
address of record and there is no evidence in the record that appellant’s address had changed.
The Board has held that, in the absence of evidence to the contrary, it is presumed that a notice
mailed to an individual in the ordinary course of business was received by that individual.12 The
Office therefore properly found that appellant’s request for reconsideration was untimely filed.

6

Leon J. Modrowski, 55 ECAB 196 (2004); Dorletha Coleman, 55 ECAB 143 (2003).

7

Id.

8

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

9

See Angel M. Lebron, Jr., 51 ECAB 488, 490 (2000).

10

Veletta C. Coleman, supra note 3.

11

20 C.F.R. § 10.607(b); Donna M. Campbell, 55 ECAB 241 (2004).

12

Joseph R. Giallanza, 55 ECAB 186 (2003).

3

Appellant submitted a December 15, 2006 letter from Dr. Platon in which he clarified his
opinion that appellant was injured due to her employment. Dr. Platon is a chiropractor. As the
Office informed appellant on October 26, 2005 a chiropractor is considered a physician under the
Act only when a spinal subluxation is diagnosed and supported by an x-ray. As Dr. Platon did
not treat appellant for a subluxation he is not considered a physician under the Act. Therefore,
his report does not constitute probative medical evidence on the underlying issue in this claim or
establish clear evidence of error in the Office’s denial of appellant’s claim.
Appellant has not established error by the Office in denying her claim on the grounds that
her claim was untimely filed. To establish clear evidence of error, the evidence must be of
sufficient probative value to prima facie shift the weight of evidence in favor of the claimant and
raise a substantial question as to the correctness of the merits of the Office’s decision.13 As the
evidence submitted has no probative value and appellant’s argument was unsubstantiated she has
failed to meet this standard and therefore the Office properly denied merit review.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration on the merits on the grounds that her request for reconsideration was not timely
filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 4, 2007 is affirmed.
Issued: September 20, 2007
Washington, DC

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

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

13

See Veletta C. Coleman, supra note 3

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Decatur, GA, Employer
__________________________________________

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

Docket No. 17-0071
Issued: June 16, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 17, 2016 appellant filed a timely appeal from an August 3, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated November 16, 2015, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3 the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 16, 2013 appellant, then a 54-year-old nurse, filed an occupational disease
claim (Form CA-2) alleging that she developed a respiratory condition as a result of dusty vents
1

5 U.S.C. § 8101 et seq.

and construction on the premises where she worked. She became aware of her condition on
November 27, 2013 and related it to factors of her federal employment on December 11, 2013.
Appellant stopped work on December 12, 2013.
Appellant was treated by Dr. Michael B. Miller, an osteopath, on December 1, 2013, for
chest tightness, chest burning mid sternum and shortness of breath worsening on exertion. She
indicated that her symptoms worsened as her workday progressed and resolved when she left
work. Appellant denied a history of asthma. In a December 11, 2013 examination with
Dr. Miller, appellant reported that construction was ongoing in an overhead area and that the
carpet in her work area had been removed causing an increased level of spores. Dr. Miller
recommended an alternate work area. On April 2, 2014 he advised that appellant’s multiple
sclerosis was aggravated by environmental exposures.
Appellant was treated by Dr. Donovan Christie, a Board-certified internist, on
December 11, 2013 for shortness of breath and prescribed a nebulizer to relieve her reactive
airway presentation. Appellant reported that there was a construction project underway at her
workplace. Dr. Christie recommended appellant take two days of leave to ease her exposure to
allergens. On January 16, 2014 he treated her for multiple episodes of respiratory distress due to
caustic fume exposure on December 11 and 16, 2013 through the air vents at work. Dr. Christie
recommended changing appellant’s work environment to a remote location away from noxious
fumes and indicated that further exposure would damage appellant’s health. He opined that her
current illness was the result of exposure to elements in her workplace. Dr. Christie indicated
appellant would be disabled until her work environment changed. In a report dated April 14,
2014, he opined that she was exposed multiple times to caustic fumes and mold spores
performing her daily work tasks which affected her respiratory system and neurological
functioning. Dr. Christie requested reasonable accommodations and that appellant’s workstation
be moved. He diagnosed systemic mycosis, sleep disturbance, gait abnormality, stress, shortness
of breath, respiratory conditions, and multiple sclerosis.
In a decision dated May 14, 2014, OWCP denied appellant’s claim because the evidence
did not support that the exposure had occurred as alleged. On March 27, 2015 appellant
requested reconsideration.
Appellant submitted a June 10, 2014 report from Dr. Christie who diagnosed reactive
airway disease and occupational asthma. Dr. Christie noted that appellant presented with
hoarseness and shortness of breath with marked decrease in lung capacity. He recommended
that she be moved to another building. On February 26, 2015 Dr. Christie treated appellant for
severe reactive airway disease. He noted that she worked in an area of the hospital which was
undergoing major construction and renovation which created environmental changes that
adversely affected appellant. Dr. Christie diagnosed occupationally-induced asthma and
mycosis. He advised that appellant had been permitted to telework and her condition had
gradually improved.
Appellant submitted a September 26, 2013 employing establishment construction bulletin
which informed personnel of construction activity where appellant worked from September 28 to
November 14, 2013. A March 27, 2014 environmental spore trap reported no detectable fungal
spores in the work area.

2

On July 22, 2015 OWCP vacated the May 14, 2014 decision. It determined that new
factual and medical evidence submitted established that appellant was exposed to allergens in the
workplace which caused her injury. In a second decision of even date, OWCP accepted
appellant’s claim for asthma reactive airway disease.
On August 11, 2015 appellant filed a claim for compensation (Form CA-7) for total
disability, for the period February 24 to September 30, 2014.2 The employing establishment
advised that she returned to work on May 5, 2014. In a letter dated September 29, 2015, OWCP
asked the employing establishment to address any periods of wage loss after appellant returned
to work on May 5, 2014. On November 16, 2015 the employing establishment commented that
she should not be entitled to compensation after she had returned to work.
In a decision dated November 16, 2015, OWCP granted appellant’s claim for
compensation for the period February 24 to May 4, 2014 but denied her claim for compensation
for the period May 5 to September 30, 2014. It advised that she had returned to work on May 5,
2014 and had no entitlement to compensation at that point.
On June 2, 2016 appellant requested reconsideration. She sought compensation for
doctor visits after she returned to work. Appellant indicated that reports from Dr. Miller and
Dr. Christie supported that she had environmental exposure to allergens while her workplace was
undergoing construction which caused her pulmonary condition. She noted that she did not have
a history of pulmonary conditions and documentation revealed that when she returned to the
building she experienced bronchospasm, hoarseness, and shortness of breath requiring additional
treatment.
Appellant indicated that the employing establishment granted reasonable
accommodation for her to telework and her pulmonary status had improved, but that she
continued to treat with Dr. Christie two to three times a week to monitor her condition. She
submitted a claim for reimbursement for these appointments.
Appellant submitted a proficiency report dated May 25, 2016 in which she was rated as
highly satisfactory.
Appellant submitted health care certificates from Dr. Christie dated December 18, 2013,
April 16, 2015, and May 18, 2016. These reflect treatment for shortness of breath, dyspnea on
exertion, hoarseness, chest tightness, and pulmonary function compromise. Dr. Christie noted
that this was a lifetime condition with continuing exposure to allergens. He advised that
appellant could not perform her job functions due to her condition and would require treatment
visits and medication throughout the year.
In reports dated June 4, 2015 and January 28, 2016, Dr. Christie indicated that on
November 27, 2013 appellant had developed a severe case of reactive airway disease due to her
exposure at work and had a medical history significant for multiple sclerosis. He indicated that
due to major construction and renovation at appellant’s workplace her pulmonary problems were
exacerbated when she entered the hospital. Dr. Christie noted that appellant has undergone
extensive treatment and aggressive intravenous therapy. He opined that it was a medical
necessity for appellant to have high efficiency heating and air-conditioning units at home to
2

The record indicates that appellant used sick and annual leave for her work absences before February 24, 2014.

3

maintain air quality and her pulmonary function needs. Dr. Christie advised that appellant
continued to be monitored with office visits and additional treatments including injections two to
three times a week and has gradually improved.
In an August 3, 2016 decision, OWCP denied appellant’s request for reconsideration on
the grounds that the evidence submitted was insufficient to warrant a merit review. It found that
the submitted evidence was irrelevant or immaterial to the issue of appellant’s claimed
employment-related total disability.
LEGAL PRECEDENT
Under section 8128(a) of FECA,3 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(3) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by the OWCP;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.5
ANALYSIS
OWCP denied appellant’s claim for compensation for the period May 5 to September 30,
2014 as appellant had returned to work and the medical evidence did not demonstrate that any
disability was due to her accepted work injury. Thereafter, it denied her reconsideration request,
without a merit review.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the
claim. In her request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law. In her May 19, 2016 reconsideration request she sought
payment for doctor visits after she returned to work. However, appellant did not include dates on
3

Supra note 1 at § 8128(a).

4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.608(b).

4

which she sought medical treatment for her accepted condition during the claimed period of
May 5 to September 30, 2014.
A claimant may be entitled to a merit review by submitting relevant and pertinent new
evidence. Appellant submitted certificates of health care provider dated December 18, 2013,
April 16, 2015, and May 18, 2016 from Dr. Christie who treated her for shortness of breath,
dyspnea on exertion, hoarseness, chest tightness, and pulmonary function compromise.
Dr. Christie noted that appellant could not perform her job functions due to her condition and
would require treatment visits and medication throughout the year. Similarly, in reports dated
June 4, 2015 and January 28, 2016, he indicated that appellant developed severe reactive airway
disease on November 27, 2013 due to exposure to major construction at her workplace.
Dr. Christie noted her course of treatment and advised that appellant continued to be monitored
with office visits and additional treatments as needed and has gradually improved. Although
these reports are new, they are not relevant because they do not address disability for the claimed
period from May 5 to September 30, 2014 causally related to her accepted condition.
Submission of evidence or argument which does not address the particular issue involved does
not constitute a basis for reopening a case.6 Therefore, this new evidence is insufficient to
warrant reopening the case for a merit review.
Appellant submitted a proficiency report dated May 25, 2016 in which she was rated as
highly satisfactory. This document is not relevant to the underlying issue of whether appellant
had any period of disability from May 5 to September 30, 2014 causally related to her accepted
condition.7 Therefore, this new evidence is insufficient to warrant reopening the case for a merit
review.
On appeal, appellant asserts that she was entitled to leave without pay for the time she
sought medical treatment for her accepted condition after returning to work. As explained, the
Board does not have jurisdiction over the merits of the claim.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or constitute relevant and pertinent new evidence not previously considered. Pursuant to
20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim, pursuant to 5 U.S.C. § 8128(a).

6

See J.G., Docket No. 16-1576 (issued November 18, 2016); Edward Matthew Diekemper, 31 ECAB 224,
225 (1979).
7

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the August 3, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 16, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1384
Issued: January 9, 2012

Case Submitted on the Record

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

JURISDICTION
On May 25, 2011 appellant, through her attorney, filed a timely appeal from a May 6,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation for wage-loss
benefits for a refusal of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On July 1, 2008 appellant, then a 50-year-old claims representative, filed a traumatic
injury claim (Form CA-1) alleging that she sustained injuries on June 26, 2008 when a chair
1

5 U.S.C. § 8101 et seq.

slipped backward and she fell to the floor. OWCP accepted the claim for sprains of the neck,
lumbar back, right shoulder and upper arm and left knee and leg. Appellant worked
intermittently commencing September 9, 2008 and underwent left knee surgery on June 3, 2009.
She stopped working and began receiving compensation for total disability as of June 7, 2009.
In a report dated January 15, 2010, Dr. Michael Katz, an orthopedic surgeon selected by
OWCP for a second opinion regarding disability for work, provided a history and results on
examination. He opined that appellant continued to have an employment-related partial
disability. Dr. Katz stated that she could work five hours a day in a light-duty position with no
lifting of more than 15 pounds. In April 2010, OWCP referred appellant for vocational
rehabilitation services. The employing establishment offered her a light-duty job at four hours a
day on June 14, 2010.
OWCP referred appellant for a second opinion examination by Dr. Robert Orlandi, an
orthopedic surgeon. In a report dated September 2, 2010, Dr. Orlandi provided a history and
results on examination. He opined that appellant could return to work without restrictions. By
letter dated September 17, 2010, OWCP requested a supplemental report from Dr. Orlandi. It
noted that the accepted conditions included a neck and right shoulder injury, and requested that
he also consider these conditions. In a report dated October 20, 2010, Dr. Orlandi opined that
appellant did not have any musculoskeletal disability and could return to work without
restriction.
In a report dated September 30, 2010, Dr. Joseph Paul, an attending orthopedic surgeon,
provided a history and results on examination. He opined that appellant continued to have
disability as a result of her cervical and lumbar spine, as well as the left knee. Dr. Paul
concluded that the injuries were permanent in nature and causally related to the June 26, 2008
employment incident.
OWCP found a conflict existed in the medical evidence and appellant was referred to
Dr. Robert Meyerson, a Board-certified orthopedic surgeon selected as a referee physician. By
report dated December 9, 2010, Dr. Meyerson provided a history, review of medical records and
results on physical examination. He stated that there was some residual disability from the
lumbar, neck and left knee sprains, with supporting objective evidence from magnetic resonance
imaging (MRI) scan results. Dr. Meyerson noted degenerative disc disease and disc herniations
of the cervical spine and an L4-5 disc herniation. With respect to a cervical condition, he stated
that there was “little objective evidence” relating the degenerative changes to the employment
injury and it was “unclear” whether the cervical disc herniations were employment related. For
the left knee, Dr. Meyerson stated that there was little objective evidence to indicate that any
current disability was employment related. OWCP asked him “if there was a work-related
disability” to discuss whether appellant could work limited duty. Dr. Meyerson stated that
appellant should be able to work five hours a day with a 10 pound lifting restriction and
15-minute breaks every two hours to accommodate her lumbar condition.
In a letter dated January 5, 2011, OWCP asked Dr. Meyerson to clarify his opinion
regarding employment-related conditions and disability. It noted that Dr. Meyerson had stated
that there were residuals from the lumbar, neck and back strains, but had also reported a lack of
objective findings on causal relationship.

2

On March 17, 2011 the employing establishment submitted a job offer for a modified
claims representative effective March 28, 2011. The job offer stated that the position was five
hours a day, with no lifting more than 10 pounds and 15-minute breaks every two hours.
By letter dated March 18, 2011, OWCP advised appellant that it found the offered
position to be suitable. It advised her of the provisions of 5 U.S.C. § 8106(c)(2) and stated that
she had 30 days to either accept the position or provide reasons for refusing the offer.
Appellant’s representative submitted a March 25, 2011 letter stating that the job offer was
not consistent with appellant’s medical restrictions and disability. The representative argued that
Dr. Meyerson did not consider the medication appellant was taking and had scheduled her for an
additional MRI scan.
By report dated April 18, 2011, Dr. Meyerson reported that an April 4, 2011 lumbar MRI
scan showed an L3-4 disc herniation, which would correspond to appellant’s complaints of pain
and numbness in her left leg. He again opined that she could work five hours a day, with
15-minute breaks every two hours. Dr. Meyerson stated that appellant should not lift more than
15 pounds.
In a letter dated April 19, 2011, OWCP found the reasons provided by appellant for
refusing the position were not valid. It stated that appellant had 15 days to accept the position or
wage-loss benefits would be terminated.
By decision dated May 6, 2011, OWCP terminated compensation for wage loss on the
grounds that appellant had refused an offer of suitable work under 5 U.S.C. § 8106(c)(2).
LEGAL PRECEDENT
5 U.S.C. § 8106(c) provides in pertinent part, “A partially disabled employee who …
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.2 To justify such a termination, OWCP
must show that the work offered was suitable.3 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.4
Whether an employee has the physical or psychological ability to perform an offered
position is primarily a medical question that must be resolved by the medical evidence. In

2

Henry P. Gilmore, 46 ECAB 709 (1995).

3

John E. Lemker, 45 ECAB 258 (1993).

4

Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

3

evaluating the suitability of a particular position, OWCP must consider preexisting and
subsequently acquired medical conditions.5
ANALYSIS
The initial question is whether the offered position was medically suitable. The issue is a
medical issue and must be resolved by probative medical evidence. With regards to disability,
there was a disagreement between attending physician Dr. Paul and the second opinion examiner
Dr. Orlandi. FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.6 Dr. Meyerson was selected for a referee
examination to resolve the conflict.
In assessing the probative value of the medical evidence from Dr. Meyerson, the Board
reiterates the legal precedent noted above: OWCP must consider preexisting and subsequently
acquired conditions. Unlike many medical issues under FECA, where there is a sharp distinction
between employment-related conditions and nonemployment-related conditions, a proper
evaluation of the medical evidence in a case involving 5 U.S.C. § 8106(c)(2) must consider all
medical conditions.
Dr. Meyerson provided an opinion that appellant could work five hours a day, with
15-minute breaks every two hours and a lifting restriction. The lifting restriction was 10 pounds
in the December 9, 2010 report and 15 pounds in the April 18, 2011 report. The offered position
was within these stated restrictions.
The issue, however, is whether Dr. Meyerson considered only the accepted employmentrelated conditions in providing the work restrictions. All of the questions posed to Dr. Meyerson
by OWCP referred to accepted conditions or the June 26, 2008 employment incident. The
question as to disability was stated, “If there was a work-related disability” that precluded return
to her normal work duties, could appellant perform a light-duty job. It is unclear whether
Dr. Meyerson’s response was limited to disability which he believed to be employment related.
In this regard the only condition that he clearly stated was employment related was the lumbar
condition. As to the neck, he noted a number of findings, such as degenerative changes and disc
herniations, but he stated there was “little objective evidence” relating the degenerative changes
to appellant’s employment injury and it was “unclear” whether the cervical disc herniations were
employment related. As to the left knee, Dr. Meyerson stated “there was little objective evidence
to suggest any current disability” related to the left knee was employment related.
OWCP asked Dr. Meyerson for a supplemental report, but the questions posed again
were focused on causal relationship with employment. The Board finds that he was not
sufficiently responsive in his April 18, 2011 report. Since Dr. Meyerson appeared to question
5

Gayle Harris, 52 ECAB 319, 321 (2001); Martha A. McConnell, 50 ECAB 129, 132 (1998); S.G., Docket No.
08-1992 (issued September 22, 2009).
6

5 U.S.C. § 8123(a). According to 20 C.F.R. § 10.321, the referral to a third physician is called a referee
examination and the physician selected has no prior connection with the case.

4

whether the current neck or left knee conditions were employment related, it is unclear whether
his opinion as to disability was limited to disability from a lumbar condition, or whether he
factored into work restrictions the neck, left knee or any other medical condition. The questions
posed to Dr. Meyerson suggested that OWCP was only concerned with employment-related
disability. OWCP should have requested clarification and simply asked Dr. Meyerson for an
opinion as to work restrictions without regards to causal relationship with the employment
injury.
It is OWCP’s burden of proof to establish that the offered position was suitable. For the
reasons noted, the Board finds that OWCP did not meet is burden of proof in this case.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate compensation
for wage loss for a refusal of suitable work under 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 6, 2011 is reversed.
Issued: January 9, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5